
    Patrick F. Degnan vs. Eben D. Jordan & others.
    Suffolk.
    January 23, 24, 1895.
    June 21, 1895.
    Present: Field, C. J., Holmes, Knowlton, Morton, & Barker, JJ.
    
      Personal Injuries — Due Care — Deport of Case—When Verdict to he set Aside.
    
    If an elevator tender is wanting in due care in exposing himself to injury from the sudden descent of the elevator, he cannot recover in an action for personal injuries against his employer.
    Even if in the report of an action for personal injuries there are material errors prejudicial to the plaintiff in a ruling in regard to the admission of testimony, a verdict directed for the defendant on the ground that the plaintiff was not in. the exercise of due care will be set aside only in case there is evidence to warrant a finding of due care on his part.
    Tort, for personal injuries occasioned to the plaintiff while in the defendants’ employ as an elevator tender.' Trial in the Superior Court, before Hammond, J., who, at the defendants’ request, ruled that the action could not be maintained, directed a verdict for the defendants, and, at the plaintiff’s request, reported the case for the determination of this court. If the ruling was right, the verdict was to be set aside, provided there was evidence to warrant a finding of due care on the part of the plaintiff; otherwise, judgment was to be entered on the verdict..
    
      W. Schofield & A. E. Burr, for the plaintiff.
    
      J. Lowell, Jr., (S. H Smith with him,) for the defendants.
   Morton, J.

The plaintiff was, at the time of the accident, an elevator tender in the employ of the defendants, and was forty-three years of age. He had been at work running the elevator about a fortnight, and, as he testified, understood the business fairly well. On the morning of the accident, he found the elevator below the level of the street floor, and tried, without succeeding, to open the door. Then he went down into the basement, as he had been told by the engineer to do in such a case. There he met a man by the name of Feehiley, who told him that he could not move the elevator. Thereupon the plaintiff stooped into the elevator well under the elevator, which was four or five feet from the floor, so that the whole upper part of his body was under the elevator, for the purpose of reaching the elevator rope, which was in one corner, and as he pulled the rope the elevator came down on him, causing the injuries complained of. Neither the plaintiff nor Feehiley made any effort to report to the superintendent of elevators or to the engineer that there was anything wrong with the elevator. And we think that, in view of the notice he had from the situation of the elevator that something about it was probably out of order, his conduct in exposing himself to injury from its sudden descent was wanting in due care. Murphy v. Webster, 151 Mass. 121; S. C.156 Mass. 48.

The plaintiff excepted to certain rulings in regard to the admission of testimony. But the manner in which the case is reported renders their consideration unnecessary. According to the report, even if there are material errors prejudicial to the plaintiff in the ruling in regard to the admission of testimony, the verdict is to be set aside only in case there is evidence to warrant a finding of due care on the part of the plaintiff.

Judgment on the verdict.  