
    Elsie Bowers, as Administratrix, etc., of Francis J. Tootell, Deceased, Respondent, v. The Norwich Pharmacal Company, Appellant.
    Third Department,
    January 8, 1908.
    Negligence—Employers’ Liability Act —fall of elevator — contributory negligence of employee in failing to signal engineer to stop.
    An employee who, contrary to'instructions, jumps on a moving elevator as it reaches the top floor of a building, hut fails to ring the bell which was the signal customarily given for the engineer to stop, and is killed by the fall of the elevator due to the breaking of the cable when the elevator reached the cross beam, is guilty of contributory negligence which bars a recovery.
    (Per Kellogg, J., concurring): The failure of the engineer to stop the elevator before it reached the top of the shaft was the negligence of a fellow-servant.
    Appeal by the defendant, The Norwich Pliarmacal Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chenango on the 15th day of August, 1906, Upon the verdict of a jury for $5,000, and also from an or del* entered in said clerk’s office on the 15fcli day of August, 1906, denying the defendant's motion for a new trial made upon the minutes. •.
    The action is to recover damages for the negligent killing hy the defendant of the plaintiff’s intestate. The deceased was employed by the defendant as a day laborer in the construction of a six-story brick building. On the day of the accident he was engaged in removing wheelbarrow loads of brick from a freight elevator on the sixth floor of the building, and wheeling them to workmen at different points on that floor. The elevator was operated by an engine in the basement. of ^the building, which turned a drum, around which a rope was coiled, which passed over a pulley at the top of the elevator well, and which was attached to a ring in the top of the elevator frame, it was the custom to give signals by pulling a cord attached to a bell, when the elevator had°reached the proper floor, which served to notify the engineer to'.stop the elevator. In addition to the bell, there were marks . upon the rope at two different places, one indicating that the elevator was at the fifth floor, and one- some distance from it indicating that, if the engineer did not get the bell signals, he should stop the •engine. On the afternoon of the day in question, while the elevator was moving up slowly with a barrow load of brick, Tootell jumped on to it while it was in motion. It continued moving, upwards to the cross beam, from which it was suspended, the rope attached' to it parted and the elevator with him on it fell to the bottom of the well, and he received injuries from which he died soon thereafter. No. signal was given by him or by any one else to stop the elevator. The action is brought under the Employers’ Liability. Act (Laws of 1903, chapl 600), as well as under section 18 of the Labor Law (Laws of 1897, chap. 415).
    
      Herbert O. Stratton, for the appellant.
    
      F. T. Miller and Wordsworth B. Matterson, for the respondent.
   Chester, J.:

We think this judgment cannot be sustained for'the simple reason that at the time the decedent was killed he was not exercising due care and diligence. On the contrary, the evidence clearly shows that in violation of repeated instructions to him, he jumped on the elevator while it was in motion and gave no signal for it to stop, which he could readily have done after getting on it, and thus by his own Want of care the accident was caused. He was fully informed as to the manner of giving the signals by means of the cord attached to the bell, and for an hour before the accident lié alone had given them.

There was no evidence in the case tending to show that it was necessary for the decedent in performing his. work to get on the elevator while" it was in'motion. The jury were instructed by .the court that if they found that he was instructed not to get on the elevator while it was in motion, and he violated that instruction, there could be no recovery and their verdict must be for the defendant.

The court was evidently of the impression that- on this branch of the case there was a question for the jury, but we fail to find any conflict in the evidence. Several disinterested witnesses testify that Tootell was instructed to keep off the elevator while it was in motion and there was also a notice posted to all the employees to that effect, and there was no evidence to the contrary.' Ifc is manifest that if these instructions had been followed and Tootell had waited for the elevator to stop before getting on it to remove the barrow of brick, he would not have been injured. Upon the evidencé he was guilty of contributory negligence as a matter of law and the complaint should have been dismissed.

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, Kellogg, J., in memorandum; Sewell, J., not sitting.

Kellogg, J. (concurring):

The injury to plaintiff’s intestate was caused by two negligent acts: First. The engineer failed to notice the mark on the rope which indicated that the elevator was at the fifth floor and which was a signal to him to slow down the engine so that when the mark on the rope for the sixth floor arrived he could shut off the power. He failed to see the first mark, but "upon seeing the second slowed down instead of stopping the engine, thinking that he had arrived only at the fifth floor. He was a coemployee of the intestate and was negligent"in Iiis duty as such. He was not negligent in performing" any duty of superintendence.

/Second.- Plaintiff’s intestate failed to ring the hell which was the signal to notify the engineer that the elevator had arrived at the sixth floor. That duty rested upon liim and he had been performing it for sometime previous. Ho other person present was charged with that duty. The falling of the elevator, therefore, resulted primarily from Ills negligence. The defendant has not -been shown negligent and the plaintiff’s intestate was not shown free from' contributory negligence.

: Judgment and order reversed and new trial granted, with costs to appellant to abide event.  