
    John Shields, Appellant, v. John N. Robins, Respondent.
    
      Negligence—■master and servant—-the servant assumes the evident risks of the employment — effect of a master neglecting a, statutory duty as to covering an elevator—proximate cause.
    
    In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, it appeared that the defendant occupied a building six stories high, having an elevator shaft, in the roof of which building there was a scuttle which was closed with two trap doors, one shutting down from above and the other shutting up from below, the- door shutting from below being hung upon hinges and fastened up by. the use of a stick resting upon a ladder which ran from the upper floor to the scuttle; this ladder had steps four inches wide which were greasy and slippery, and the elevator platform- was uncovered and had no grating or screen in the shaft above it.
    On the 3d day of July, 1893, the plaintiff was going up on the elevator in the performance of his duty, and at the same.time one McDowell, another employee, a boiler maker, whose hands were greasy, went up the ladder to fasten the door of the scuttle which shut up from below, having with him an oaken mallet; his foot slipped on the ladder while he was at work, the mallet slipped from his hand, struck the next floor, bounded into the elevator shaft and struck the plaintiff, who was coming up on the elevator, and injured him. The plaintiff was the assistant superintendent of the defendant and usually took charge of and directed repairs. It appeared that the inspector of buildings had directed the defendant to put a covering or roof over the elevator, and that he had not complied with this direction at the time of the accident.
    
      Held, that assuming that the complaint sufficiently stated, as a ground of negligence, the failure of the defendant to comply with the statutory duty to put a roof over the elevator, this furnished no reason for a recovery;
    That as the plaintiff, although he knew that there was no roof over the elevator, continued in the defendant's employment, he assumed the risks incident to the use of the elevator and waived the performance of the. duty of the defendant to furnish such an appliance, whether or not the defendant was required by-statute or by the inspector of buildings to furnish such a roof. . .
    
      Seirible, that the plaintiff could not recover because of the improper construction of the door in the scuttle in the roof or because of the slippery condition of the ladder, as it was doubtful whether these could be said to have been the proximate cause of the accident, for the reason that, if the mallet, when it dropped to the floor below, had not happened to bound down the elevator shaft, no injury would have resulted to the plaintiff;
    That, however this might be, the defects were obvious, were known to the plaintiff, and that he must be held to have assumed the risks incident to the use of the scuttle and the ladder as they were.
    Appeal by the plaintiff, John Shields, from a judgment of the Superior Court of the city of New York in favor of the defendant, entered in the office of the clerk of said court on the 24th day of October, 1895, upon the dismissal of the complaint directed by the court, after a trial before the court and a jury.
    The action was brought to recover damages for personal injuries to the plaintiff, alleged to have been caused by the negligence of the defendant.
    The defendant occupied the building No. 32 Washington street, where he carried on the business of repairing steamships. The building was six stories high with an elevator shaft running from the bottom to the top. The elevator was an uncovered' platform that went up and down on a wire cable, and was used by the workmen in the building to carry iron bars, rods, coal and other materials used in the business. There was a blacksmith’s shop on the upper floor, and above this floor in the roof of the building there was a scuttle or hatchway which was closed with two trap doors, one shutting down from above, and the other shutting up from below. The door shutting down from above was originally provided with a hook and staple to fasten it, but at the time of the accident the staple was broken and a nail and string had been put in its place. The door shutting up from below was hung upon hinges,, and was fastened up by the use of a stick resting upon the ladder running from the upper floor to the scuttle or hatchway. This ladder had board steps about four inches wide instead of round,
    ' and at the time of the accident the steps, were greasy and slippery. .The elevator platform was uncovered; had no grating or screen of iron above it.
    The accident occurred July 3, 1893. The plaintiff was going up on the elevator in the performance of his duties. At the same time McDowell, another employee, had gone up the ladder to fasten the lower door which shut up from below in the scuttle or hatchway in the roof. He had with him a piece of wood and an oaken mallet, the one or the other to be used in securing the said door. The stick generally used for the purpose was gone.- McDowell pushed the door up to its place and tried to fasten it with the piece Of wood, but it did not work. . He tried the mallet and that would not do. He then held the mallet in one hand and tried to work the piece of wood in tight between the door and the step of the ladder, and, in'doing this, his foot slipped on the ladder and the mallet slipped out of his hand and fell. It struck the floor below and bounded into the elevator shaft, and falling down struck the plaintiff, who was coming up on the elevator, upon his head and shoulders, and caused the injuries to recover for which the action was brought. McDowell was a boiler maker, and his hands were greasy and slippery at the time of the accident.'
    The plaintiff had been in the defendant’s" employ for twenty-one years, was originally a'machinist and was made assistant superintendent in March or April, 1893. The business was moved into the Washington street building a few months before the accident. There had been a soap manufactory, in the building before that. ■ . Changes were made in the building to adapt it to the uses of .the business, from time to time, before the accident. Plaintiff had' knowledge of these changes.. He personally directed the location and setting up of the machinery. He reported to the defendant such alterations and repairs as were" necessary to be made in the building and they were generally made under plaintiff’s direction.
    ' As to the elevator, boards were put around the hatch on each floor, and coverings like trap doors were provided; new pulleys were put in the elevator, and a new wire cable for it to run on ; also a new carriage and car. Plaintiff had charge of these changes and repairs. He also directed repairs in the floors of the building, and suggested any other alterations or repairs that- he thought ought to be made.
    On the trial the plaintiff read in evidence a deposition made by defendant wherein defendant testified that the inspector of buildings called upon him after he went into the Washington street building, and, among other things, directed him to put a covering or roof over the elevator, but that he did not comply with this direction until after the accident.
    The plaintiff alleged in his complaint that his injuries were caused solely by the negligence of the defendant, and by the improper and defective construction of the hatchway in the roof of the building, and plaintiff’s counsel, in his brief, claims that the real cause of the accident was the defective construction of the hatchway or scuttle in the roof and the defective condition of the ladder leading to it.
    
      Fverett P. Wheeler, for the appellant.
    
      Alden B. Oreme, for the respondent.
   Williams, J.:

The complaint hardly alleges as ground of negligence the failure of defendant to comply with any statutory duty imposed upon him to provide a roof or cover for the elevator as directed by the inspector of buildings. But even if the pleading was sufficient to enable him to litigate that question, still the evidence taken all together was insufficient to support a recovery upon such a theory. The plaintiff knew there was no roof or cover to the elevator, and continuing in defendant’s employ, and using the elevator with such knowledge, he assumed the risks incident to the use of the elevator as it was, and waived the performance of the duty by the defendant, to furnish such appliance whether required by the statute or inspector of buildings or not. (Freeman v. Glens Falls Paper Mill Co., 70 Hun, 531; affd., without opinion, 142 N. Y. 639; Knisley v. Pratt, 75 Hun, 323; reversed, 148 N. Y. 372.) These cases effectually dispose of several decisions of General Terms in the State to the effect that an employee cannot be held to have assumed the risks incident to the use of defective appliances, where the employer has failed to comply with provisions of the statute, but where the actual condition of the appliances is known to the employee. (See, also, Marsh v. Chickering, 101 N. Y. 396.)

There could, therefore, be no recovery here for the negligence of the defendant in failing to put a roof or cover over the elevator. This defect was obvious, and was well known to the plaintiff, and he voluntarily assumed the risks incident to the use of the elevator without this appliance.

The only question remaining is whether, under the evidence, the jury could properly have found negligence, on the part of the defend-' ant, which caused the accident, with reference to the construction or condition of the lower door of the hatchway or scuttle in the roof closing from below and the ladder leading to it from the upper floor.

The only defects that could be complained of were in the manner of fastening the doors and the greasy and slippery condition of the ladder. It is doubtful if these defects could be said to have been the proximate cause of the accident. The defendant suggested that the proximate cause of the accident was the carelessness and negligence of McDowell, the co-employee of the plaintiff, and that, therefore, no recovery could be had. We think this is hardly an answer to the plaintiff’s theory of negligence. Even if it was found that McDowell was negligent, still the question would remain, whether the accident would have occurred but for the negligence of the defendant himself, as to the construction and condition of the door and ladder. If it would not, then the defendant would be liable notwithstanding the negligence of McDowell may also have contributed to the accident. This question would have been one of fact for the jury. The appliance for. fastening the door and the greasy and slippery condition of the ladder might well have been found by the jury'to be defective and dangerous, and if the accident had resulted directly from such defective condition, they might have been found to have been the proximate cause of the, accident. It is said that the direct result of these defects was the dropping by McDowell of the oaken mallet. The mallet dropped upon the floor below, and bounding, happened to go down the elevator shaft. If it had bounded in any other direction, or the trap door of the elevator shaft on the upper floor had been closed, or there had been a cover or roof over the elevator, no injury would have resulted to the plaintiff. It is doubtful, under these circumstances, if it could properly be said that these defects were so directly connected with the accident that they were the proximate cause thereof.

It seems to us, however, that it must be said that these defects were obvious, and were known to the plaintiff to exist, and that, under the rule hereinbefore referred to, he must be held to have assumed the risks' incident to the use of the door and ladder as they were. They were open to observation, and the position of the plaintiff, his employment, and the duties performed by him after the occupation of the building, were such as would fully apprise him of the condition of the door and ladder as they actually existed.

We are of the opinion, therefore, upon the whole case that the complaint was properly dismissed by the trial court, and that the judgment should be affirmed, with costs.

Yah Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Judgment affirmed, with costs.  