
    Harry Zilver, an Infant, by Simon Zilver, His Guardian ad Litem, Respondent, v. Robert Graves Company, Appellant.
    Negligence— injury from a fall into an elevator shaft — a clerk employed in addressing envelopes and a man employed to run an elevator are fellow-servants —when- a party should be allowed to cross-examine his own witnesses.
    
    In an action brought to recover damages for personal injuries, the evidence tended to show that the plaintiff, a lad fifteen years of age, was employed by the defendant at night in addressing and stamping envelopes on one of the upper floors of the 'defendant's .premises; that the plaintiff was working at a desk about fifty feet in the rear of an elevator shaft; that .while the plaintiff was working three lights were burning near him, but that upon completing his work he extinguished the lights and proceeded in the direction of the elevator, which he desired to take in order to reach the ground floor; that the door of the elevator was open, but that the elevator car was not at that floor; that the plaintiff walked into the elevator shaft and received personal injuries,
    It appeared that the room was furnished with sufficient lights, but the plaintiff testified that he had'been instructed not to light more than the three t.o which reference has been made. He also testified that he had been instructed by the bookkeeper to extinguish the three lights upon completing his work, but it did not appear that in giving such instruction the bookkeeper represented the defendant. The defendant employed an elevator man and it was not shown that he was incompetent.
    
      Held, that if the plaintiff's injuries were the result of the elevator man’s failure to light the lights in front of the elevator shaft or to close the door leading thereto, the defendant was not liable, as the plaintiff and the elevator man were fellow-servants.
    
      Semble, that if the plaintiff fell into the shaft because of the darkness of the room after he had extinguished the lights, he could not recover, for the reason that he himself had caused such darkness.
    "When it is proper for the court to allow a party to cross-examine a witness called by him, who is evidently adverse to such party, as to a written statement made by such witness, considered.
    Patterson, J., dissented.
    Appeal by the defendant, the Robert Graves Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 9th day of November, 1904, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 23d day of November, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      William A. Jones, Jr., for the appellant.
    
      Edward Hymes, for the respondent.
   McLaughlin, J.:

The plaintiff, on the 6th of October, 1903, sustained personal injuries by falling into an elevator shaft, and he brought this action to recover therefor, upon the ground that such injuries were caused by defendant’s negligence.

In his complaint; he alleged that at the time the injuries were sustained he was in the defendant’s employ, and having finished the work in which he was engaged, proceeded to the elevator shaft for the purpose of taking the elevator to the ground floor; that the door leading into the elevator was open at the time, although the car was not at that floor, and he, assuming it was there, stepped into the shaft and fell to the basement. The negligence charged was that the defendant had not properly lighted the elevator or that part of the building through which the elevator shaft ran ; that it employed an incompetent person to operate the elevator ; and that it permitted the door to he open when the elevator xvas not on the floor, at. which plaintiff xvas at xxtork.

The answer denied the' acts of negligence alleged. At the trial there was a sharp conflict of evidence between the parties as to-just how the accident occurred. The plaintiff himself, a lad about fifteen years of age, testified that he was,, immediately prior to the accident, working'Overtime pursuant to a request of the defendant;, that the work in which he xvas engaged was addressing and stamp-ring envelopes; that the desk at which he performed this work was about fifty feet in the rear of the elevator shaft; that the elevator Was used for carrying both passengers and freight.; that there were only three lights in the room, in which he worked, one near his desk and two a short distance away, and these he extinguished, as he had been directed to do, when he completed his work; and that he had .been told not to interfere xvith the other lights on that floor. In describing xxdiat occurred at and immediately prior to the time-lie fell into the shaft,-he said: “ I could see to do that work by the. txvo lights on the bookkeeper’s desk and the one light over my desk. The bookkeeper’s desk was about ten feet from my desk in the same part of the loft. When I finished addressing the envelopes, and put on the stamps, I turned out the lights. I had received instructions as to that. I had received instructions to light three lights when working night work ¡and to turn them out when I had finished my. work. * * * I Was told to light these three' in' my night work and leave the rest alone. I had never touched any 'of those other lights. When I had turned out those three lights , as I have described, the loft xvas dark. * * * I was going to the elevator to use it in going down. I walked slowly and felt my way along the wall. I knew the general direction in which the elevator Was. I was feeling my way along the Wall. I was feeling for the bell, to ring the elevator bell,, and I came to the opening and stepped-in. That xvas the opening of the elevator shaft. I didn’t' know what it xvas then. I was- unconscious when I fell into this elevator shaft. The next thing I remember xvas waking Up in the hospital.”

The person in charge of the elevator, one Broderick, was called as a witness by the plaintiff and stated that he and one Schlicht, another employee, were at the time in question on the same floor With the plaintiff, getting some paper to put onto the elevator and there were then two gas jets burning in front of tlié elevator shaft. Complaint is made by the appellant as to the way in which plaintiff’s counsel was permitted to examine this witness, but I am of the opinion that the court did not err in permitting leading questions to be put to him. It is quite apparent from reading the testimony of the witness that he was hostile to the plaintiff, and had been called by him under a misapprehension as to what his testimony would be, such misapprehension being largely due -to a written statement previously made by the witness as to ■ his knowledge of the cause of plaintiff’s injuries. Under these circumstances the trial court, being satisfied that the witness ivas adverse, was justified in permitting leading questions to be propounded and it was, in effect, cross-examining him as to the statements theretofore made. (Maloney v. Martin, 81 App. Div. 432; affd., 178 N. Y. 552.)

On the part of the defendant one Schlieht was called and he corroborated the witness Broderick to the effect that there were two lights burning in front of the elevator shaft at the time the plaintiff fell into it. He testified that he was engaged with Broderick in putting paper onto the elevator at the time the accident occurred ; that he was at work on the same floor that the plaintiff was and from where he was working he could plainly see the shaft; that the elevator door was open and he saw the plaintiff “sneaking over to the elevator. He pulled the rope and the elevator went to the top. * * * He wanted to stop it and, of course, missed the rope and went down below.”

The testimony of the plaintiff and the two witnesses mentioned is substantially all there is bearing on the cause of the accident, and it was for the jury to pass upon their credibility. That they believed the testimony of the plaintiff is evidenced by their verdict and the same cannot be disturbed unless legal error was committed during the trial. The defendant contends that such error was committed by the trial justice refusing to charge the following request, to which an exception was taken : “If the jury find that the proximate cause of the injury to the plaintiff was the failure of the elevator operator to close the door of the elevator shaft, such failure was the negligence of a fellow-servant and their verdict must be for the defendant.”

I am of the opinion that the refusal to charge as requested constituted error which necessitates a reversal of the judgment appealed from. Broderick, the person in charge of the elevator, was a fellow-servant. of the plaintiff. They were engaged in a common employment, and, though doing different work, were coservants, employed by a common master. (Stringham v. Hilton, 111 N. Y. 188.) The defendant furnished lighting facilities which, if properly used, were sufficient for all purposes. This fact is not disputed. ITo claim was made that the elevator was not perfect in every respect, nor was any proof offered to establish the allegation of the complaint that it did not furnish a competent person to operate the same, whose duty it was to light the lights in front of the elevator shaft. If, therefore, plaintiff’s injuries were caused by Broderick’s failure to light' the lights in front of the shaft, Or to close the door leading into it, such failure was his and not the defendant’s negligent act. (Stringham v. Hilton, supra; Geoghegan v. Atlas S. S. Co., 146 N. Y. 369; Crispin v. Babbitt, 81 id. 616; Earle v. Clyde S. S. Co., 103 App. Div. 21.)

In addition, to-this, if, as the plaintiff testified, it was dark on the floor where he was at work after he had extinguished the lights, and by reason thereof he fell into the shaft, defendant was not liable, because such darkness was caused by the plaintiff himself, acting, it is true, under instructions from Bateman, the bookkeeper. But Bateman was not in charge of the premises, nor is there any . testimony to show that he. represented the master in giving the instructions which he did. The place furnished by the master for the plaintiff to work in was reasonably safe. It had been equipped with appliances to properly light it. The same can be said of the ' .elevator shaft and the door leading into it. Competent servants had been provided to run the elevator and see that the lights in and about the shaft were lighted. If they failed to perform their duty, it was a risk which the plaintiff assumed when he entered and continued in the defendant’s employ. One who engages in work with others takes the chances not only of his own negligence, but the negligence of his fellow-servants and, in case of injury from either, he cannot recover damages from his employer,

If the foregoing observations are correct as to Broderick,, then it follows that the court erred in not. charging the jury as requested, because if they had found that the plaintiff’s injuries were due to his negligence, then their verdict would necessarily have been for the defendant.

The judgment and order appealed from, therefore, must be reversed and a new trial ordered, with, costs to appellant to abide event.

O’Brien, P. J., Ingraham and Hatch, JJ., concurred ; Patterson, J., dissented.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  