
    Eveline Leland, as Administratrix, etc., of George Leland, Deceased, Appellant, v. George A. Hearn and Others, Respondents.
    
      Negligence—fall of an elevator upon an unskilled workman employed in the shaft — no assumption of the risk where the danger could he avoided hy reasonable care on the master’s part.
    
    A servant does not assume the risk of a danger which can be mitigated or avoided by reasonable care on the part of the master.
    An unskilled workman who, pursuant to a rule established by his employers, is engaged in cleaning an elevator shaft — an operation involving little or no danger if the elevator is in proper condition — does not assume the risk of the elevator falling upon him in consequence of the employers’ failure to repair it, where its condition could not have been discovered by the employee.
    Appeal by the plaintiff, Eveline Leland, as administratrix, etc., of George Leland, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 23d day of March, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the New York Trial Term.
    
      Ernest T. Fellowes, for the appellant.
    
      John Vernon Bouvier, Jr., for the respondents.
   Barrett, J.:

The action was brought by the administratrix of George Leland, deceased, to recover damages for his death, which, as is alleged, was occasioned by the defendants’ negligence. Leland was employed by the defendants to operate one of the passenger elevators used in their business. He was about nineteen years of age. One of his duties was to clean out, every Saturday morning, the shaft of the elevator which he was operating. While performing that duty upon the 6th of February, 1897, the elevator suddenly descended from the sixth floor and crushed him. He died from the injury thus received. The nonsuit was upon the ground that Leland assumed the risk of the elevator’s falling. It is sought to be sustained, however, not upon the ground assigned, but because there was, as contended, no evidence of the defendants’ negligence. There is nothing in the latter contention. It was the defendants’ duty to furnish the deceased with a reasonably safe place to work in. There was ample evidence to go to the jury that the defendants were aware ■of the unsafe condition of the elevator. They had both, actual and constructive notice of that condition ; and they had had ample time before the accident to remedy the defects and to make the elevator safe. It was concededly the rule of their house that the elevator employees should clean the elevator shafts on Saturdays; and the defendants were bound to exercise reasonable care to prevent the elevators from falling upon these' employees while they were so engaged in the performance of that duty.

The real question is that upon which the nonsuit proceeded. We think that also is free from doubt. It is well settled that dangers which can be mitigated or avoided by reasonable care on the part of the master are not incident to the business. Leland assumed no other risk save that ordinarily incident to operating such an elevator. He did not assume the risk of its getting and remaining out of repair where the defects were known to his employers, and the latter failed to remedy them. (Meehan v. Judson, 43 App. Div. 46.) The risk here was not obvious. In fact there was little or no risk, while the elevator was in proper condition, in the performance of the particular duty. The risk was caused solely by the master’s negligence in permitting it to become dangerous. The rule, under the circumstances here disclosed, limits the employee’s contributory negligence to acts which are inevitably or imminently dangerous. (Hawley v. Northern Central Railway Co., 82 N. Y. 372; Patterson v. Pittsburg & C. R. R. Co., 76 Penn. St. 389.) There was nothing in the situation, or in the circumstances immediately attending the operation of the elevator, suggestive of inevitable or imminent danger; nothing, indeed, suggestive of danger at all. Leland had, in fact, no reason, upon the morning in question, to refuse to comply with the defendants’ rule. That rule, while in force, amounted to an express order to clean out the shaft; and it was not only an order, but in effect an assurance that the order could be safely executed, and, consequently, that the elevator was in ordinary condition and reasonably safe.

Then, too, Leland knew that the defendants permitted its daily use, and trusted to it the lives of hundreds of their customers. It is true that he also knew that it was in the habit of sagging slightly, and that it had actually fallen upon a previous occasion. He had good reason to believe, however, that it had been repaired — sufficiently, at lea-st, to prevent a recurrence of the latter incident. He was not a skilled workman, and he could not tell from observation whether the machine was in good working order or not. Before commencing to clean out the shaft, he took the elevator up to the sixth floor, where it seems to have remained stationary and without incident for some fifteen minutes. It then descended suddenly and with a crash. The deceased looked up, shouted and tried to get out, but the fall was too rapid for him, and he was crushed. The reasoning of Chief Judge Huger, in McGovern v. C. V. R. R. Co. (123 N. Y. 287, 288), is directly applicable to these facts, and it furnishes a complete answer to the points taken by the respondents below and upon this appeal.

The plaintiff made out aprima facie case for presentation to the jury upon all relevant questions, and the nonsuit was erroneous. The judgment appealed from should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., Eumsbv, Ingraham and McLaughlin, JJ., concurred.

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