
    Thomas Clancy, Respondent, v. The Guaranty Construction Company, Appellant.
    
      Negligence — injury to an employee struck by a construction elevator, in plain sight, while walking on a beam across an opening in front of it.
    
    A laborer employed Upon a building in process of construction, not yet inclosed, nor having its partitions in place nor its floors completely laid, who, when in search of planking for which he had been sent, walks upon a beam only three and a half inches wide over an opening directly in front of an elevator in plain sight — known by him to exist in the building and constantly used in hoisting materials — and is struck upon the shoulder by the elevator and thrown from the fourth floor to the ground, is guilty of contributory negligence.
    Appeal by the defendant, The Guaranty Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 22d day of April, 1897, upon- the verdict of a jury, for $12,500, and also from an order entered in said clerk’s office on the 8th day of September, .1897, denying the defendant’s motion for a new trial made upon a case containing exceptions.
    The action was brought to recover damages for personal injuries caused by the defendant’s'alleged negligence.
    . On the 7th of August, 1895, the defendant was engaged in constructing a building in the city of Buffalo called the Guaranty Building; it had a frontage on Pearl street of ninety-three feet and on Church street intersecting Pearl of one hundred and sixteen feet, which was the northerly line of the building, while its southerly and westerly lines were of corresponding length, except that a court or area twenty feet and three inches east and west by fifty-three feet north and south ran from the southerly line of the building to a point forty feet south of Church street; the east line of- the court was thirty-six feet ten inches west of the Pearl street east front, and the west line is the same distance as the west line of the building; there is a basement under the entire building, and the- court runs to the top of the building; the building was twelve stories' high ; at' . this time there were no partitions upon .any of the floors; the structures upon which the floors were to be placed contained square, open spaces of about six by seven feet; at the north end of the court were four elevator wells, or places for elevators, to ascend and - descend, and two elevators were in operation at this time, propelled by steam from the basement story. The elevators were constantly in use, making a trip in about four minutes each, and were used exclusively for carrying brick, mortar and other materials to the various stories in the building, and were structures created temporarily for the purpose of constructing the building; wheelbarrows would be placed witli the loaded material upon the elevator in' the basement, and taken to the required floor, and the empty barrows returned by the elevators; a stairway from top to. bottom ran alongside and in full view of these elevators, and at each floor there was a platform at the stairway leading into the floor near the elevators ; the building at this time was merely a skeleton and not inclosed, and the elevators could be seen without difficulty, passing and repassing, from any of the floors.
    On the seventh of August aforesaid the plaintiff was employed by the defendant as a laborer to work upon the building, and early in the morning ascended the stairway to the fifth floor and was put at the business of removing planks for scaffolding from place to place; lie worked on this floor until noon, when he Went down the stairway for his luncheon, and returned 'by the stairway, which was the only means of ascending and descending in the building, for the employees. No one was permitted upon the elevators except the foreman; the plaintiff worked on the fifth floor until about four o’clock, when he was directed by his foreman to go down to the fourth floor, get hold of some planking that vras there and pass it up to the fifth floor; he went down the stairway to the fourth floor, and he found on the north of the platform, at that floor, two planks; he walked along those planks until he reached a single plank which led past the west elevator well, which was not being operated, and passed on to the next elevator well which was being operated, and he found no means of going further on to reach the planking he was sent to get, unless he walked along a beam three inches and a half wide upon the top, directly in front of the elevator ; and while walking oil this beam he was struck on the right shoulder by one of the elevators and thrown to the ground below and severely injured.
    The plaintiff was familiar with structures of this kind, having worked upon them. He testified that he knew there were'elevators in the building, but that he did not know exactly where they were; that he saw an engine iii the bottom of the building which he supposed was connected with the elevators; that he had no information or notice of the danger of approaching the- place where he was injured; and it appeared that there were no guards about .the elevators, or notices put up in the building-in regard to them!'
    
      Harry D. Williams, for the appellant.
    
      Loran L. Lewis, Jr., for the respondent.
   Per Curiam :

The negligence alleged against the defendant is that it failed to provide a safe place for its employees to work in, and that it was negligent in not notifying the plaintiff of the place of elevators and the danger in approaching them, and in not providing guards or railings about the elevators so as to prevent such consequences as-followed to the plaintiff.

The rule thus invoked does not apply to this case. The work in which the plaintiff was engaged was evidently hazardous; the place where .he was working was in process of construction ; it was incomplete at the time of the accident. The plaintiff had knowledge of the conditions surrounding him and of the dangers attending his-employment, and was called upon to exercise the care commensurate with his situation, and accepted by his employment at such a place-the risks of the situation. (Sharpsteen v. Livonia Salt & Mining Co., 3 App. Div. 148; Kennedy v. M. R. Co., 145 N. Y. 288, 294; Williams v. D., L. & W. R. R. Co., 116 id. 628; Beique v. Hosmer, 48 N. E. Rep. [Mass.] 338.)

The main facts of the case are not in dispute.

The foregoing statement fairly indicates them. It is true that the plaintiff testified upon his direct examination in effect that lie did not know that there were elevators in the building, and had not seen them ; but he also testified to facts which point clearly to his-knowledge of the elevators, and he finally admitted on cross-examination that he knew that there were elevators in the building, but-that he did not know exactly where they were.

It is clear from the whole evidence that the plaintiff must have known of the existence of the elevators and about where they were located. The plaintiff’s witness, Sullivan, testified : “ A man could plainly see the elevators going up and down. There was a good light all around these elevators; there was nothing to obstruct the-view of any person standing on the floor, so far as seeing the elevators was concerned. Yon could see the elevators right in front of him, looking that "way. Yon could see them from anywhere on tlm floor, unless you happened to be so far on either side of the court that the.court obstructed your view.”

This evidence is fully sustained by the other witnesses in the case.. The plaintiff’s freedom from contributory negligence was not established. His .proceeding to walk, right in front, of the elevators upon a beam but three inches and a half wide on the top, when all around lnm were holes through- which he could be precipitated to the basement story below by the least misstep, was negligence per se on his; part. Upon the facts, therefore, we must reverse this judgment. It is unnecessary to consider the other points raised by the counsel for the appellant.

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

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