
    James H. Aken, Appellant, v. Barnet and Aufsesser Knitting Company, Respondent.
    Third Department,
    March 28, 1907.
    Negligence —Employers’ Liability Act — injury on elevator.
    The superintendent of a mill, although the alter ego of the owner, is entitled to the benefits of the Employers' Liability Act, which makes no distinction between different classes of employees.
    Although the master has posted a notice forbidding employees from riding on a freight elevator, it is for the jury-to say whether the defendant acquiesces in such use when there is evidence that the employees were accustomed to use it to the knowledge of the master, and a dismissal of the complaint of a superintendent who was injured on such elevator, is error.
    As section 3 of the Employers’ Liability Act provides that the question whether an employee assumes the risk of injury or is guilty of contributory negligence by the continuance in his employment with knowledge of the risk is a question of fact, it is error to dismiss the complaint of one injured on the freight elevator upon the ground that being near a landing when the elevator stopped, he could have stepped to the floor and attempted to operate it from a place of safety.
    Smith, P. J. and Sewell, J., dissented.
    Appeal by the plaintiff, James H. Aken, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 21st day of May, 1906, upon the dismissal of the complaint by direction of the court after a trial at the Albany Trial Term.
    
      Daniel C. McElwain and James H. Berns, for the appellant.
    
      J. Murray Downs, for the respondent.
   Chester, J.:

The action is for negligence, and the complaint makes the necessary allegations to bring it under the Employers’ Liability Act (Laws of 1902, chap. 600). The plaintiff was employed by the defendant as superintendent of its knitting mill. The respondent urges that because the plaintiff was the defendant’s superintendent he was the alter ego of the master and, therefore, the Employers’ Liability Act does not apply. The fact that the plaintiff was a superintendent of the defendant makes him none the less an employee and that act does not assume to make any distinction between different classes or kinds of employees, but is for the benefit of all employees of whatever grade.

The plaintiff claims he was injured while riding upon an elevator in going from the second to the fourth floor of the mill, by having his right foot caught between the edge of the elevator and the floor of the fourth story. He claims that when the elevator got near the fourth floor it stopped about ten or twelve inches below the floor and remained there stationary about a minute; that it would not move one way or the other; that he took hold of the shifting rod and tried to move it up even with the floor and it would not work; that after he had tried to move the elevator up and down he was going to step off, and as lie did so it started up and he was thrown forward and his foot caught between the floor and the elevator and he suffered the loss of the great toe of his right foot and other injuries to his foot and ankle. The elevator was an ordinary freight elevator and was operated by means of what is called a shifting rod attached to one of the side beams, so that it could be operated by any one at any of the floors. It could not be operated from the elevator until it approached the floor going up or coming down, and one had. to be on or near the floor before he could get hold of this rod in order to stop or start the elevator. The friction gear of the elevator was operated by a belt and the claim of plaintiff is that this belt was “ slippery, slack and rotten,” and that' the defendant had been notified of its defective condition and promised to remedy it, but had not done so. There was enough evidence on this branch of the case to make the question of the defendant’s negligence one for the jury.

It was shown by the defendant that there was posted in the mill on. the elevator on every floor a notice, of which the following is a copy

“ Caution.
“ Employees are forbidden from riding on this elevator.
■ “ Anyone riding on same does so at their own peril. This elevator is for feight only.
“COMMERCIAL KNITTING MILL CO.”

The name signed thereto was that of the prior occupant of the mill. The plaintiff denied, in his evidence, that the caution sign or notice was posted on the elevator during the time he was employed in the mill, and denied knowledge of such notice. But whether the notice was posted or not, as claimed "by the defendant, there was much evidence that the defendant acquiesced in and, upon occasion, directed the use of the elevator by its employees in going from floor to floor, and that the employees very generally used it for their convenience when not engaged in carrying freight, and that it was so used with the knowledge of the officers of the defendant. This was denied by the defendant, and there was thus raised a clear question of fact for the determination of the jury.

It is also urged on the part of respondent that the complaint was pro]3erly dismissed, for the reason that after the elevator came to a stop when within about a foot of the floor to which the plaintiff was going, he could have stepped from the platform of the elevator . to the floor and been in a place of absolute safety, and that he could then have manipulated the shifting rod from that place with safety, and because he chose to stand upon the elevator while doing this he voluntarily assumed the risks incident thereto. There would be great force in this contention were it not for the Employers’ Liability Act, which provides in section 3 that “ the question whether the employee understood and assumed the risk of such injury, or was guilty of contributory negligence, by his continuance in the same place and course of employment with knowledge of the risk of injury, shall be one of fact, subject to the usual powers of the court in a proper case to set aside a verdict rendered contrary to the evidence.” We think, therefore, it could not be said as a matter of law that the plaintiff assumed the risk, nor that'he was guilty of contributory negligence as a matter of law.

Construing, as we must on this appeal, all disputed facts as established in favor of the plaintiff, and drawing the most favorable inferences deducible from the evidence, as we áre required to do, we think the case should have been submitted to the jury in the first instance, and its verdict taken subject to the right of the court to set it aside if it should be deemed to be against the evidence or the preponderance thereof.

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

All concurred, except Smith, P. J., and Sewell, J., dissenting.

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