
    Annie Brudie, as Administratrix, etc., of William Brudie, Deceased, Respondent, v. Renault-Freres Selling Branch, Incorporated, Appellant.
    First Department,
    May 6, 1910.
    Negligence—fall down elevator shaft — contributory negligence.
    There can be no recovery for the death of a truckman who having unloaded the contents of his truck upon the defendant’s elevator, which opened upon the street, and while watching the unloading of other trucks, stepped backwards and fell into the elevator shaft,- although the defendant's servant- failed to close the door of the elevator after receiving the last load, if there be no proof of freedom from, contributory negligence.
    
      Appeal by the defendant, Benault-Fréres Selling Branch, Incorporated, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of August, 1909, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 26th day of July, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      Paul Grout, for the appellant.
    
      William Edgar Weaver, for the respondent.
   Miller, J.:

This action was brought to recover damages for the death of ■ the plaintiff’s intestate, alleged to have been caused by the defendant’s negligence. The deceased was a truckman in the employ of one P. Brady, who had a contract with the defendant to cart its automobiles from the Custom House to its place of business. On the day of the accident, the deceased with three other men, each driving a truck loaded with an automobile, arrived at the defendant’s place of business. The method of unloading was to back the truck up to the curb, to let the automobile down on skids by means of a winch, and to run it through an opening in the wall onto an elevator platform and then to run the elevator to the floor where it was desired to unload the automobile. It was ten feet from the curb to the building line. The wall of the building was two feet thick and the elevator was six inches inside the wall. The elevator well was thirteen feet deep below the ground floor. On the inside of the wall there was a door which, when pulled down, completely closed the entrance to the elevator well from the street. It was the habit of the operator of the elevator to pull down the door before raising the elevator. The deceased’s-truck was the first one unloaded, and thereupon he drove it across the.street, came back and stood on the sidewalk in front of the defendant’s premises. Whether he did that to assist in' unloading the other trucks or whether he was merely standing about waiting for them to be unloaded, does not appear. Three trucks had been unloaded in the manner described; It is to be inferred that, when the elevator went up the third time, the operator did not close the door because before the fourth truck was' unloaded the deceased was observed to-walk backward into the elevator shaft, and he died from the injuries received from the fall. There is no evidence whatever to .account, for his thus walking backward into the shaft except the bare fact that he did so. . While the plaintiff' contends that there is some evidence that he slipped on the sidewalk and. fell into the elevator well, the fact is. that that is conjecture, -

From the foregoing statements of facts it must appear that there is no evidence whatever upon which to base a finding that the deceased was free fivin contributory negligence; Upon very similar facts it was held in Maxwell v. Thomas (31 App. Div. 546) that one backing into an elevator well without looking to see whether the door was open or shut was guilty Of contributory negligence as a matter of law. That case was, more favorable to the plaintiff in that it appeared that the plaintiff was attempting to' put a skid in place and thus may have had his attention for the moment diverted from the fact that he was near an opening into an elevator well.

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

Ingraham, P. J., McLaughlin, Lahghlin and Dowling, JJ"., concurred.

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