
    BOEHM v. MACE.
    
      N. Y. Common Pleas, General Term;
    
    
      March, 1892.
    1. Variance) Under a complaint alleging that the accident complained of was occasioned by the unsafe condition of the elevator car on which plaintiff was riding,—held error against objection to allow the reading of a statute regulating the enclosing of elevator shafts, and to submit to the jury whether defendant had been negligent in not complying with the statutory requirements.
    
      2. Master and servant.] Under L. 1887,0. 462 §8, amending' L. 1886, c. 409, the owner of a manufacturing establishment is. under no absolute duty to his employees to enclose an elevator shaft until the discretion of the factory inspector to direct such, enclosure has been exercised.
    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 defendant's motion for a new trial.
    The action was brought by Conrad Boehm against' Levi H. Mace and others to recover damages sustained by the plaintiff while riding in the elevator used on the: premises of defendants, by whom he was employed.
    
      Gilbert R. Hawes, for plaintiff.
    
      Cannon & Atwater, for defendants.
   J. F. Daly, C. 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 to 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 of 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 the-defendants, the eighth section, chapter 462, of the Laws, of 1887, amending chapter 409 of the Laws of 1886, providing 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 pro-wide 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 grounds of objection were 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-hole. 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 the 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 and limbs of those employed in such establishment,” and 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 July 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 Id. 222), 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 fails to do so and to provide the appliances required by the statute, he is liable for 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 those 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 invoke 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 defendants assumed to arise from a failure to comply with the statute, no case of negligence under the statute having been pleaded or proved.

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

BISCHOFF, J., concurs.  