
    Angelo Malaverneri, Respondent, v. Turner Construction Company, Appellant.
    First Department,
    December 30, 1910.
    Master and servant—negligence — injury on freight elevator —- facts not justifying recovery.
    A contractor engaged in remodeling a factory building is not chargeable with negligence owing to the fact that lie allowed his employees to use' a freight elevator having a space between the platform and the wall sufficiently wide to allow a person’s foot to become wedged therein.
    Moreover, where an employee got upon the elevator when it was so crowded that part of his foot, to his knowledge, projected over the edge of the platform, he was guilty of contributory negligence and cann'ot recover for injuries received when his foot became wedged between the platform and the wall as the elevator ascended. . •
    Appeal by the defendant, the Turner Construction Cornpany, from a judgment of the Supreme Court -in. favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 13th day of July, 1910, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 20th day of August, 1910, de'nying the defendant’s motion for a new trial made upon the minutes.
    
      Harry 8. A ustin, for the appellant.
    
      Hobart 8. Bird, for the respondent.'
   Miller, J.:

This is a negligence case, servant against master. There are several reasons for reversing the judgment, but it is necessary to consider but one, namely, that the plaintiff failed ‘to prove a cause of action. . The defendant was engaged in remodeling the factory buildings of a plaster manufacturer, while the industry of the latter continued. The plaintiff was employed by the defendant to carry gravel to a concrete machine. On the day of the accident he was told to carry window frames from the ground floor to the third floor of the building. His story is that he had worked until three O’clock, carrying the frames by way of the stairs, when he was told by the defendant’s foreman to get on the elevator in the. building, which was being run by the owner in connection with his manufactory, blit which the defendant’s men were in the habit of using from time to time to carry up material. The plaintiff says that, when told to get upon the elevator, there were already upon it five or six persons, five or six barrels of plaster, two wheelbarrows, a truck and a small hand truck; and that, as he observed when he took his position upon it, he had to stand with half of one foot protruding outside of the platform. It appears that there was some space between the edge of the platform and the wall of the shaft. Just how much does not plainly appear, but apparently it was just sufficient to enable" the plaintiff’s foot to become wedged between the platform and the wall of the shaft, for, as the elevator ascended, that was what happened; and for the injuries thus sustained this action is brought.

Assuming that the elevator was furnished by the defendant for the use of its men, it is difficult to understand upon what theory the defendant can be said to have been negligent. This was a freight elevator for use in a factory. Surely it .is not necessary to have such an elevator equipped with a cage such as passenger elevators have. Obviously there had to be some space between the. platform and ■ the wall, and men using such an elevator might naturally be expected to take care of themselves, at least to the extent of keeping their feet out of the space. The case of Gray v. Siegel-Cooper Company (187 N. Y. 376), relied upon by the respondent, is not in point. In that case the plaintiff’s intestate, who was ignorant of the situation, backed into a space between a platform and the wall wide enough to pérmit him to fall through.

But if the-defendant was bound to anticipate that the plaintiff . might get onto the elevator when it was so crowded that he would have to stand .with one foot projecting over the edge of the platform, the plaintiff was certainly guilty of contributory negligence in taking, that position with his eyes open to the situation. If the defendant’s foreman was negligent in directing him to do it, the latter’s negligence was that of a fellow-servant. (White v. Eidlitz, 19 App. Div. 256; McDonald v. Simpson-Crawford Co., 114 id. 859; Vogel v. American Bridge Co., 180 N. Y. 373.)

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

- Ingraham, P¡ J., McLaughlin, Laughlin and Dowling, JJ., concurred. '

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