
    Conrad Boehm, Resp’t, v. Levi H. Mace et al., Appl’ts.
    
      (New York Common Pleas, General Term,
    
    
      Filed March 7, 1892.)
    
    1. Negligence—Elevator—Proof of inapplicable statute.
    In an action for personal injuries, where the complaint alleges that they were caused by the absence of guard rails around the elevator on which plaintiff was riding at the time of the accident; that he was forced by the motion over the side of the elevator, and his foot crushed between it and a beam projecting from the side of the shaft, it is error to permit proof of the statute requiring the enclosure of elevator shafts, as a failure to comply with its provisions was not pleaded.
    3. Same—Laws 1886, chap. 409; Laws 1887, chap. 462. '
    It is only where the factory inspector has determined that the enclosure of an elevator shaft is necessary to protect the employees that the owner or employer is liable for a failure to provide such safeguard, and the latter is under no duty to invoke the exercise of the discretion of the inspector before continuing the use of the elevator.
    Appeal from a judgment of this court entered upon the verdict of a jury in favor of the plaintiff for $15,000, and from an order denying defendants’ motion for a new trial
    The action was brought to recover damages sustained by the plaintiff while riding in the elevator used' on the premises of defendants, by whom he was employed. •
    
      Cannon & Atwater, for app’lts; Q. R. Hawes, for resp’t.
   Daly, Ch. J.

The complaint alleged that the elevator on which plaintiff was riding was in an insecure, dangerous and unsafe condition, in that there were no guard rails around the same and the floor or platform of the car of said elevator was improperly secured, was loose and worn out; that by reason of such improper construction and unsafe condition a heavy truck, intended for the carrying of goods, which was on the ■ elevator at the time, was rolled by the motion of said elevator against and upon the plaintiff, thereby forcing him over the side of the elevator and catching and crushing his right foot and leg between the side of ■the elevator and a beam or moulding projecting from the side of the elevator shaft between the first and second floors. On the trial the plaintiff was allowed to read, against the objection and exception of defendants, the eighth section, chapter 462, of the Laws of 1887, amending chapter 409 of the Laws of 1886,’pro-viding that it should be the duty of the owner of any manufacturing establishment where hoisting shafts or well holes are used to cause the same to be properly and substantially enclosed or secured if in the opinion of the inspector it is necessary to protect the life or limbs of those employed in the establishment; and also to provide automatic doors at all elevator ways so as to form a ■substantial surface when closed, and so constructed as to open and close by action of the elevator in ascending or descending.

Objection to this statute was made on the ground that the complaint did not allege that the accident happened by the failure to comply with its provisions, and that it had already appeared in evidence that the accident happened from an entirely different cause. The first ground of objection was good. The negligence charged in the complaint was the absence of guard rails around the elevator, and not the absence of a substantial enclosure around the shaft or well-bole. It is apparent that where the complaint speaks of the elevator, the car of the elevator is intended, the allegation being that the plaintiff “ took one of said elevators,” also, “ that on said elevator there was a heavy truck; ” that the truck was rolled against the plaintiff “ by the motion of said elevator; ” that he was forced “ over the side of said elevator,” and that his foot was crushed “ between the side of said elevator and a beam or moulding projecting from the side of the elevator shaft; ” so-that the allegation that the elevator was insecure and dangerous in that there were no guard rails around the same, was an allegation respecting the elevator car and could not refer to the absence of an enclosure of the elevator shaft.

The objection that the neglect to comply with the statute was-not the negligence set out in the complaint was therefore sound and required the exclusion of the statute. The objection was made in time. The rule is strict that a recovery must be according to the pleading as well as proof.

But even if it might be argued that the accident did occur from a failure to enclose the elevator shaft as provided in the statute,, because the plaintiff’s foot was caught between the side of the car and the floor beam of the floor above; which could not have happened if the whole shaft had been boarded in, yet something more than such fact was needed to prove a case of negligence under the statute. It will be observed that the enactment requires the1 shaft or well-hole to be enclosed or secured, not absolutely, but only if in the opinion of the inspector it is necessary to protect the life or limbs of those employed in such establishmentand it was not shown that any such opinion" had been expressed or conveyed to the defendants, nor any notice to enclose the shaft or well-hole given to them prior to the happening of the accident, which occurred J uly 28, 1888.

It is argued by respondent that it was the duty of the defendants to enclose the elevator shaft without waiting for the notice from the inspector, quoting Willy v. Mulledy, 78 N. Y., 310, and McRickard v. Flint, 114 N. Y., 222; 23 St. Rep., 100, holding that where the owner of premises is required by statute to provide certain.safety appliances, to be such as shall be directed and approved by a public officer, or department, it is the duty of such owner to seek and obtain the necessary direction and approval, and that if he fail to do so and to provide the appliances required by the statute he is chargeable with negligence.

The statute invoked in this case differs from those referred to-in the cases cited. Laws 1873, chap. 863; Laws of 1874, chap. 547. There was an absolute duty imposed by these statutes ;- here there was no duty until the discretion of the inspector had been exercised in each particular case, and that discretion depended upon his judgment as to whether it was necessary for the protection of the employees in the particular establishment; there was, therefore, no general duty upon the proprietors of all establishments to provide such Safeguards, and hence no active duty was imposed upon the owners of all establishments in which elevators were in use to invoice the exercise of the discretion of the factory inspector before continuing such use.

It would seem, therefore, erroneous to admit proof of the statute in this case, and to submit, as was done, to the jury the question of negligence of the defendant, assumed to arise from a failure to comply with the statute, no case of negligence under the statute having been pleaded of proved.

Judgment reversed and a new trial ordered, with costs to abide the event.

Bischoff, J., concurs.  