
    Frank W. Lee, Respondent, v. The Western Electric Company, Appellant.
    First Department,
    December 3, 1909.
    Master and servant — negligence — injury on elevator — Employers’ Liability Act.— operator not superintendent — facts not justifying ' recovery.
    The operator of an elevator maintained for the benefit of employees is not a superintendent w ithin the Employers’ Liability Act.
    The plaintiff, an employee, while riding on such elevator with other persons had his foot crushed by reason of the fact .that it projected through the space ■ between the gate and the floor of the elevator so as to catch upon a metalbeam as the elevator-ascended. He claimed- that his master was negligent in that there was a space between the-floor of the elevator and the bottom of the gate, a,nd in that the elevator was permitted to become overcrowded-so that his foot was pushed through the opening by his fellow-passengers. Evidence examined, and held, insufficient to warrant a recovery.
    Appeal by the defendant, The Western Electric Company, 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 29th day of March, 1909; upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office "on the 21st day of - April, 1909, denying the defendant’s motion for a new trial made .upon the minutes.
    
      William A. Jones, Jr., for the appellant.
    
      William, J. Lippmann, for the respondent.
   Ingraham, J. :

The defendant is a foreign corporation occupying a building in the city of New York in which it carries on its business of manufacturing telephones and electrical apparatus. The plaintiff was in the employ of the defendant as an inspector of the articles manufactured. .The defendant maintained in this building an. elevator, which was used by its employees. On the 26th of November, 1906, about half-past twelve, the plaintiff entered the elevator at the ground floor. The complaint alleges that the persons in charge of this elevator allowed a large number of persons to enter it, more than the elevator could conveniently cany ; that the plaintiff was crowded into a corner against one of the gates, and when the elevator reached the fourth floor of the building plaintiff’s left foot was pushed out under the gate by reason of the persons crowding against him, his foot caught between the floor of the elevator and a metal beam on the inside of the elevator shaft, and his foot was crushed and serious injuries were inflicted. The negligence alleged is the leaving of a space between the floor of the elevator and the bottom of the gate, permitting the door sill of the elevator shaft to project beyond the walls of said shaft, and by permitting the elevator to become so crowded that the plaintiff’s foot was pushed by said other persons beyond the edge of the floor of the elevator-while the elevator was being. operated. The plaintiff served a notice on the defendant under the Employers’ Liability Act (Laws of 1902, chap. 600). The jury found a verdict for the plaintiff for $3,000.

The plaintiff testified, that he had been using this elevator for something over a year before the accident; that it was a freight elevator seven feet square, with collapsible gates; that there were two of these gates, one in the front and one in the rear of the elevator; that when he entered the elevator at twelve-forty p. m. on the 26th of November, 1906, the rear gate was closed and the front one was .open, and there were one or two persons'standinginit; that a number of persons were waiting to be carried up, and they crowded in and plaintiff being one of the- first to get in was crowded back against the rear closed gate; that after the crowd got on, the elevatorman said that some of them must get off in order to allow him to close the door two or three persons got off, the door was closed "au’d the elevator started; that after the elevator had gone up some distance, the'operator ordered those therein to move back in the car, and, they then crowded back; that the plaintiff’s foot was pushed under the gate and.caught in a beam that extended out into . the shaft; that when he went into the car he stood in front of the inner gate; that he did not notice how his feet were placed ; that they were in the ear when it started, but he could not say whether they did not project under the gate at that time; that after that the - operator asked the persons in the car to push back, and when they surged back the plaintiff’s foot got under the gate, as he supposed by .somebody hitting his foot; that he did not know how. many people there were .on the elevator.

On behalf of the defendant it-was testified that the capacity of the car was 4,000'pounds and about twenty-five people. IsTo accident had ever happened on this car previously. The gate was collapsible, and when spread open so as to close the entrance, the bottom of the gate was raised about three or four inches above the platform of the elevátor, and when .collapsed so that the entrance to the elevator was open it went down to the floor. It was such a gate ás Was usually installed in freight elevators; It is quite clear that there was no negligence of any superintendent of the defendant which would justify a recovery. The only question is, whether or not there was. any evidence "to sustain a verdict that the defendant maintained a dangerous, or insufficient apparatus. This elevator was protected -by substantial gates,, and the only possible objection to it is that there was a space when the gate was closed through which a person could put his foot.

The court charged the jury as a- matter of law that the defendant was bound not to:permit the overcrowding of the elevator, and'that if the,defendant, through its operator, permitted a greater number of persons than was. safe upon the elevator, and such a number that it overcrowded and imperilled the safety of those on the elevator then the defendant failed in its duty, and to this the defendant excepted. The defendant then i'equested the court to charge that there was no evidence from which the jury could find that there was any overcrowding -of the car. That the court refused, and the defendant excepted. The court then charged, at the request of the defendant, that there was no proof of any défeets in the elevator itself, its appurtenances or appliances. ■ The defendant then asked the court to charge that the elevator operator was not a superintendent within the meaning of the Employers’ Liability Act, which the court refused, and defendant excepted. The defendant then asked the court to charge that there was no liability under the Employers’ Liability'Act, which request was refused and defendant excepted. It seems to me that this was error. The elevator operator was not a superintendent within the meaning of the Employers’ Liability Act, and while it would be true that in the operation of the elevator as distinct from, the other work in the building the negligence of the operator might be the negligence of the defendant, so far as the number of ■ persons upon the elevator was concerned, there was no evidence to show that it was overcrowded or that the accident resulted from the number of persons in the elevator. The only evidence is that the elevator was constructed to carry twenty-five persons and that there were not over that number on the elevator at the time of the accident. It would appear that the plaintiff voluntarily placed himself in front of this door, with the construction of which he was perfectly familiar. Just what caused him to put his foot under the gate of the elevator does not appear, but it is quite impossible to say that merely crowding him would have pushed his foot through this small space of four or five inches.

I do not think this judgment can be sustained, and it should, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Patterson, P. J., McLaughlin, Lahghlin and Clarke, JJ., concurred. . .

Judgment reversed, new trial ordered, costs to appellant to abide event.  