
    (70 Hun, 530.)
    FREEMAN v. GLENS FALLS PAPER-MILL CO.
    (Supreme Court, General Term, Third Department.
    July 8, 1893.)
    1. Injury to Servant—Elevator Shaft — Contributory Negligence.
    While plaintiff’s intestate was at work at the bottom of the elevator shaft in defendant’s factory, a barrel on an upper floor was set in motion by the vibrations of the machinery, and, rolling under the bar, which was the only guard to the shaft, fell on intestate. Intestate knew that there was no door to the elevator shaft on the upper floor, and the jury found specially, on sufficient evidence, that if the bar had been in place the barrel would not have fallen. There was evidence that intestate was the last man to enter the elevator on the upper floor, and that he did not replace the bar, as he was required to do by defendant’s rules. Held, that the evidence justified a finding of contributory negligence on the part of plaintiff’s intestate.
    2. Same—Assumption of Risks.
    Laws 1887, c. 462, § 8, provides that the owners or lessees of buildings having elevators must provide trap or automatic doors to such elevators. Held, that where the absence of such a door was apparent and well known to plaintiff’s intestate, and he had used the elevator constantly, and knew what to do with the device that took the place of a door, he must be considered to have assumed the risks of the absence of the doors, and to have waived compliance with the statute.
    Appeal from circuit court, Saratoga county.
    Action by Louisa Freeman, administratrix of George Freeman, deceased, against the Glens Falls Paper-Mill Company, for the death of plaintiff’s intestate. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    For decision on former appeal, reversing a judgment in favor of defendant, see 15 N. Y. Supp. 657.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK', JJ.
    T. F. Hamilton, for appellant.
    King & Ashley, (J. S. L’Amoreaux, of counsel,) for respondent.
   HERRICK, J.

The defendant was the owner and operator of a paper and pulp mill. The mill was three stories in height, and stood upon a steep bank. The upper story of the mill was on a level with the street. Communication between the different stories of the building was had by means of an elevator passing up and down through a shaft or well. There was no trap or other door, at the time of the accident, to close the well on the upper floor, through which the elevator passed. On the upper floor this well was closed on three sides. On the remaining side were two bars. The upper bar was fastened to the posts of the well. The lower bar was one that could be moved backward and forward, through clasps attached to the posts of the well, and when in position was about 24 inches above the level of the floor at one end, and about 25£ at the other. The plaintiff’s intestate had been in the employ of the defendant about two months before the happening of the accident for which this action is brought, and used the elevator several times each day. There was evidence that instructions were given by defendant to its employes that when they passed through these bars, to and from the elevator, they should close the lower bar after their passage; that such instructions were given to plaintiff’s intestate. It is in evidence that on the day of, and prior to, the accident, plaintiff’s intestate, upon entering the elevator to descend, left the lower bar out; that his attention was called to it by defendant’s foreman, who told him that the bar must be kept in place; that it was the custom of defendant to keep, temporarily, machinery, barrels, and other movable articles, on the first or upper flooor. At the time of the accident there were one or more empty barrels upon the first or upper floor. There is evidence to show that just prior to the happening of the accident the plaintiff’s intestate, with two or three other workmen, went down the elevator; that the last person to enter the elevator was plaintiff’s intestate; that as they descended the elevator the bar was not put in place, and that the elevator' did not come back again to the upper floor until after the accident; that about 15 minutes after the elevator went down this last time the plaintiff’s intestate, with others, was engaged in placing on the elevator, at the lower floor of the building, a large grindstone, using a stone boat to move the stone to and upon the elevator. While endeavoring to adjust the roller under the stone boat, his'head projected beyond the line of the well. An empty oil barrel upon the first or upper floor rolled from its position—apparently put in motion by the vibrations of the mill, caused by the workings of the powerful machinery—into the open well, and fell upon his head, causing- his death. To recover the damages resulting from such death, this action was brought. Upon the first trial the plaintiff was non-suited. She appealed to this court, where the judgment of non-suit was reversed. 61 Hun, 125, 15 N. Y. Supp. 657. The case, being again tried, was submitted to the jury, who found for the defendant, whereupon the plaintiff appeals to this court for a new trial. Upon this last trial the court submitted four propositions of fact to the jury, as follows:

“(1) Did not the deceased know the manner in which the first or street floor of the mill was used, and the purpose for which it was used? Answer. Yes. (2) Did not the deceased know that any empty barrels were permitted to stand' temporarily on the street or first floor? A. Yes. (3) Did not deceased, on the day of the accident, at any time, see the empty oil barrel standing on the box by the post, near the elevator? A. Yes. (4) If the lower bar had been in position across the elevator well, would the barrel have fallen in? A. No.”

There is evidence to sustain all these findings by the jury, They relieve the case of a number of the questions presented when it was formerly before this court. The uncontradicted evidence shows that the intestate must necessarily have knowm that there was no door to .the well of the elevator on the first or upper floor. The evidence also shows that he was warned by defendant’s foreman of his duty to put the bar in place after entering, and before descending upon the elevator. The jury have expressly found, from the evidence, that if the bar had been in place the barrel would not have fallen down the elevator well, and there is evidence from which the jury could well find that the last time the elevator went down before the accident, where it remained until after the accident, the intestate was the last man to enter it; that neither he, nor those with him, put the bar in its proper place upon descending. So that I think the jury could fairly find that the intestate contributed to the accident which produced his death. If the failure of plaintiff’s intestate to obey the rules of the defendant, or the direction of its foreman, caused or contributed to the accident, the plaintiff cannot recover. La Croy v. Railroad Co., 132 N. Y. 570, 30 N. E. Rep. 391.

The appellant strenuously insists that the judgment should be reversed, and a new trial granted, by reason of an alleged error of the court, in its charge to the jury, as to the fact of the nonobservance of section'8, c. 462, of the Laws of 1887, which provides, in substance, that the owners, agents, or lessees of buildings having elevators must provide trap or automatic doors to such elevators, so constructed as to open and close by the action of the elevator in ascending and descending. In relation to that statute the court charged as follows:

•‘This statute itself has no sort of bearing upon the case, if you come to the conclusion—and I charge you, as matter of law, that you must come to the conclusion—that plaintiff’s intestate did know that this elevator was not provided with automatic doors. So that, I apprehend, when you come to the discussion of the case, you will lay aside that provision of law, because it has no bearing, and cannot lead you to any proper conclusion, and ought not to have any weight in the jury box or jury room. It is not an element in this case. It is an undisputed fact in the case that deceased did know the manner in which the elevator was constructed. He knew what protection there was, and he accepted the situation—accepted the employment— and did what he was doing on the day he was killed with the full knowledge of those things, so far as the protection against danger, which defendant had made to the elevator, is concerned.”

I do not think this charge constitutes reversible error. In substance, it states the rule applicable to this case correctly. The statute was enacted for the benefit of employes. Any one injured in consequence of it not being complied with has, undoubtedly, a right of action therefor. City of Rochester v. Campbell, 123 N. Y. 405-414, 25 N. E. Rep. 937; Willy v. Mulledy, 78 N. Y. 310. The action is not brought upon the statute, but is founded upon defendant’s alleged negligence. The violation of the statute, by not furnishing doors to the well hole, is undoubtedly evidence of the negligence charged, but it does not follow from that that the charge was erroneous. The duty prescribed by this statute is not more or greater than the common-law duty of an employer to his employes, to provide a safe place in which, and proper machinery with which, to work; and the defendant’s liability to the person injured by means of the statute not being complied with is not an absolute one, but is subject to the same limitations and restrictions as is the common-law liability for not furnishing a safe place and proper machinery. The defendant’s noncompliance with the statute would not relieve the plaintiff from the burden of showing a lack of contributory negligence on the part of. the intestate. McRickard v. Flint, 114 N. Y. 222-227, 21 N. E. Rep. 153. The duty imposed by the statute was for the benefit, among others, of plaintiff’s intestate. It was one that could be waived by him, so far as he was concerned, in accepting employment of the defendant. Willy v. Mulledy, 78 N. Y. 310-315. The absence of a door from the well was apparent, and must have been well known by plaintiff’s intestate. He worked there for weeks before the happening of the accident; used the elevator daily, and several times a day. He knew of, and was instructed what to do with, the device that took the place of a door. It must be held that it was satisfactory to him, and that he waived the full and complete performance of the duty which defendant owed to him, and that he voluntarily assumed the risks incident to the absence of the door. Gibson v. Railway Co., 63 N. Y. 449; De Forest v. Jewett, 88 N. Y. 264; Anthony v. Leeret, 105 N. Y. 591-600, 12 N. E. Rep. 561; Hickey v. Taaffe, 105 N. Y. 26-35, 12 N. E. Rep. 286; Shaw v. Sheldon, 103 N. Y. 667, 9 N. E. Rep. 183; Appel v. Railway Co., 111 N. Y. 550, 19 N. E. Rep. 93; Fredenburg v. Railway Co., 114 N. Y. 582, 584, 21 N. E. Rep. 1049; Williams v. Railroad Co., 116 N. Y. 628, 22 N. E. Rep. 1117; Odell v. Railroad Co., 120 N. Y. 323, 24 N. E. Rep. 478; Davidson v. Cornell, 132 N. Y. 228-234, 30 N. E. Rep. 573. And in taking that risk he waived the benefit intended by the statute, and, as to him, its provisions are not to be considered.

The court was correct, also, in charging the jury that they must come to the conclusion that plaintiff’s intestate did know that the elevator was not provided with automatic doors. That it was not so provided was perfectly obvious and apparent, uncontradicted and •undisputed. It was a matter the plaintiff’s intestate could not help knowing, and a specific finding to the contrary by the jury would have been properly set aside by the court as one not only contrary to the evidence, but wholly without evidence to support it. The findings of the jury were sustained by the evidence, and the case was properly submitted by the court, and the judgment should therefore be affirmed, with costs. All concur.  