
    Edward Reynolds, Appellant, v. Seneca Falls Manufacturing Company, Respondent.
    Fourth Department,
    March 16, 1910.
    Master and servant — negligence — injury by trap door operated by elevator — erroneous nonsuit — contributory negligence — Employers’ Liability Act.
    It is error to nonsuit, in an action brought under the Employers’ Liability Act to recover for injuries received by a servant who while crossing a trap door in a passageway in a factory was injured when the door automatically opened on the ascent of an elevator so as to crush him against the wall, where the evidence shows that the master placed no harriers across the passage, but allowed employees to use it and gave no warning signals when the elevator was in operation, although similar elevators used by others were equipped with signaling devices.
    A servant so injured is not guilty of contributory negligence as a matter of law in an action under the Employers’ Liability Act where he used the doors as a passage without hindrance from his master and at the time of the injury there was very little light in the passageway so that he could not see any vibration in the cables lifting the elevator.
    In an action under the Employers’ Liability Act even if the evidence be undisputed upon the question of assumption of risk or of contributory negligence, the case must be submitted to the jury.
    
      Appeal by the plaintiff, Edward Reynolds, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the' county of Seneca on the 19th day of March, 1909, upon a nonsuit granted by the court after a trial at the Seneca Trial Term.
    
      Oliver JD. Burden, for the appellant.
    
      Maurice G. Spratt and Alfred L. Becker, for the respondent.
   Spring, J.:

In January, 1908, the plaintiff was employed by the defendant in its manufacturing plant in the village of Seneca Falls, and in the morning of the eighteenth of that month, about seven-thirty, he was seriously injured in the course of his employment and has commenced this action under the Employers’ Liability Act (Laws of 1902, chap. 600) charging the defendant with negligence.

The defendant’s factory was a tliree-story building, excluding the basement. There was a large room on the third floor, and it was in that room, or a smaller one, known as the polishing room, in which the plaintiff had been employed for six or seven months. There was a freight elevator in the building which the man operating it ran by a cable extending up about the center of the well. On the third floor there were two trap doors which were closed when the elevator was below them. As the elevator came up these trap doors were lifted by it. At one time there had been a door on the third floor which closed when the elevator came down. This had not been in operation for a long time, and there' was no guard or barrier in front of the open space and no signals were given to advise one of the approach of the elevator.

When these trap doors were down they had been used very frequently during all the time the plaintiff had been employed in the factory as a passageway from one end of the large room to the other, and those employed in the polishing room desiring to go to the other part of the large room or returning therefrom were quite apt to use these trap doors for that purpose. This was done so generally that it was known by the officers and superintendent of the defendant. Even those in charge of- the men were wont, as a matter of convenience, to pass over these doors.

At the east of this elevator well there were doors provided for the employes to use; and it is the claim of the defendant that, having furnished an adequate place, it is not chargeable with negligence in this case, because the plaintiff happened to use these trap doors' instead of the proper place for - him to go to and from his work. That would be so if the defendant had not acquiesced in the general and extensive use of these trap doors by its employees.

The evidence is undisputed that • no warning signals were given of the approach of this elevator at any time, and that no “ barrier, guard or door ” to exclude people from using these doors as a passageway was provided.

The evidence shows that elevators of similar construction used in. manufacturing establishments for the carriage of freight are'equipped with warning signals or devices for the purpose of giving notice -to employees and other people of their approach, so that the jury might have found that it was entirely practicable either to shut off. the.use of this passageway by guards or barriers or a door, or else, if it was to be used, to equip the appliance with some sort of a warning signal. I think, therefore, that there was abundant evidence from which the jury might have found that the defendant failed in its duty to the plaintiff, inasmuch as it permitted him to use this space as a passageway while iñ the performance of the work he was assigned to do in the plant.

A more serious question pertains to the plaintiff’s freedom from contributory negligence. As already stated he had been employed for six or seven months and had walked over these doors in common with others at work in the factory without molestation or hindrance. On the morning in question there was not much light in the factory. The elevator was not much used at that early hour. BTe testified that as he started to cross' the passageway he stopped and listened but did not hear the approach of the elevator. He stepped upon the trap doors, and while the cable which operated the elevator was before him and made more or less vibration in drawing up the slow moving .elevator, the motion was not sufficient to attract his attention, or at least he did not observe the rope in the dim light. I think his failure to observe this cable is not of itself, sufficient to charge him with contributory negligence as matter of law. It is important to keep in mind that this action is under the Employers’ Liability Act, and while he was charged with the duty of exercising “ due care and diligence,” yet by section 3 of that act it is provided that whether he “ understood and assumed the risk of such injury, or was guilty of contributory negligence ” by remaining at work “ with knowledge of the risk of injury shall be one of fact.”

The construction which seems to have been given to this section by the Court of Appeals is that, even if the evidence is undisputed either upon the question of assumption of risk or that of contributory negligence, the case must be submitted to the jury. (Clark v. N. Y. C. & H. R. R. R. Co., 191 N. Y. 416, 420.)

It seems to me, irrespective of the strict rule which apparently the Court of Appeals seems inclined to adopt, there were facts and inferences in this case which, in any event, justify the submission of the case to the jury;. and I think even at common law this would be so. (Kirby v. Montgomery Bros, & Co., 197 N. Y. 27.)

As already stated, when the elevator reached the trap doors it lifted them, and the plaintiff was squeezed between the door and the frame of the elevator and his right leg crushed and injured so that eventually it was amputated.

The nonsuit was improper, and the judgment should be reversed and a new trial granted.

All concurred.

Judgment reversed and new tidal ordered, with costs to appellant to abide event.  