
    Charles H. Bauer, Respondent, v. Empire State Dairy Company, Appellant.
    Second Department,
    October 12, 1906.
    Master and servant.— injury to employee by fall from platform after dark — contributory negligence.
    Where an employee is injured by falling from a poorly-lighted platform after dark while in the act of picking up some boxes which he had been directed to bring from the platform, he does not establish freedom from contributory-negligence by evidence of care in proceeding along the platform toward the end on which the boxes were standing, when he fails to show any care on his part while picking up the boxes after discovering their location, where it appears he knew that the side and end of the platform were unprotected and had seen wagons unloading there during the day.
    A contention that the accident was caused by the fact that the platform was cut. away or rounded on the corner near which the boxes were standing is mere conjecture in the absence of proof that the employee fell at that point.
    Woodward and Rich, JJ., dissented.
    _ Appeal by the defendant, the Empire State Dairy Company from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of May, 1905, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 29th day of May, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    
      Frederick Hulse, for the appellant.
    
      C. D. Rust [Edward G. Nelson with him on the brief], for the respondent.
   Hooker, J.:

The plaintiff has had a verdict in this action of negligence. He was the servant of the defendant, and claimed, under the Employers’ Liability Act (Laws of 1902, chap. 600), that the defendant was guilty of negligence in directing him to go upon a certain platform used by it in the conduct of its business, when the platform was not sufficiently lighted, and in failing and neglecting to provide sufficient light where the plaintiff was required to perform his duties. From the judgment entered upon the verdict, and from an order denying a motion for a new trial, the defendant appeals to this court.

The defendant was engaged in the business, among others, of distributing milk, and as necessary and' convenient to the conduct of " that business, maintained a building on the southwest corner of Broadway, and Heyward street in the borough of Brooklyn. Extending southward from this building along the westerly side of Heyward street was á platform three and one-half or four feet wide, thirty to forty feet, long and about four feet above the ground, against which milk wagons were placed for the convenient loading and unloading of cans and boxes. The southwest corner of this platform was somewhat cut away so as to allow vehicles which desired to load or unload on the westerly side of the platform to come in from Heyward street and cut the corner conveniently without fear of colliding with a sharp angle at the southwest corner of the platform. A week or two . before the accident, the plaintiff, a man about sixty years' of age, applied for a position, but was. not around the premises sufficiently long to become acquainted with the arrangement of the building and platform. On the night before the accident, having been sent for, he reported at the defendant’s place of business and was,directed to return and go to work early in the morning.. He did so, and was engaged during .the day on the evening of which lie was hurt, in various occupations around the building, and testifies, and the jury has. believed him, that he was not upon the platform, and did not observe- its shape or. size. About six o’clock in the evening of the 28th of January, 1903, after most of the men had gone home, he asked the superintendent if there was anything more to be done, and waf by him directed to go upon this platform and.bring up a couple'of boxes that appeared to be standing near its southerly end. These boxes were designed to hold milk bottles, and were apparently of about a foot wide and two or three feet long. There is little dispute as to the fact that the platform was very poorly lighted, and except for a light in the main building which might, shine somewhat through a door leading to the platform, the scene was illuminated by a single gas jet some considerable distance - from the place where the boxes stood. Although there were electric light and gas. fixtures a-plenty along and over, the platform, which could have been easily lit, they Were not burning. It is evident that the' light was so faint that the plaintiff had some difficulty in observing the locality and the exact presence and location of the boxes themselves. He says he walked south on the platform, near the wall on its easterly side; discerned the outline of the boxes towards the south end of the platform, and when he approached them assured himself of.their location by touching them with his foot. He then laid hold with his left hand of one end. of a box that rested on top of another, and as he was reaching aronnd in a general southerly direction with his-right hand to grasp the other end of the box, his foot slipped off the edge of the platform and he fell westerly to the ground below and sustained serious injuries. It does not appear exactly how far from the southerly, end of the platform these boxes stood. • In his direct examination the plaintiff says he thought they were four or five feet away, but finally admitted that was a mere' guess and he did not know. Nowhere else in the evidence is their exact location disclosed. In his brief the respondent seeks to impress the fact that the plaintiff slipped and fell off that part of the platform which rounded or was somewhat cut away at its southwesterly point, but there is no proof of that fact; nor is there proof of how far from its extreme southerly point .this platform was cut away, and hence we are, as the jury must have been, unable to do more than speculate as to the exact part of the platform from which the plaintiff fell.

We are persuaded that the plaintiff has failed to meet the burden imposed upon him of showing affirmatively that lie.was free from contributory negligence. "Assuming for the sake of discussion that the defendant was negligent in not providing more light, it is to be noticed that the plaintiff has not testified to any caution or care exercised after laying hold of the box with his left hand. It is quite apparent that there is sufficient evidence from which the jury. might have found that he was in the exercise of care in proceeding along the platform to where the boxes rested, but he did not sustain his injuries in reaching the boxes, but rather while engaged in the business of removing one from the place where it stood. He knew it was dark; he knew that he was ignorant of the exact dimensions and conformation of the platform. Under these circumstances he should of course have exercised a degree of care commensurate with the conditions and his ignorance. The evidence fails to disclose the exercise of any care on his part or-of any conduct from which the jury were justified in finding that he exercised care while he was in the 'act of lifting this box, such as trying to., discern the limits of the platform, locating it with his foot as he had the place of the boxes or assuring himself in any other way that it was safe for him to step or move to the westerly side of the box and reaching with his right hand to grasp the other end of the . box he was • attempting to lift. He knew that' the place on which he was working was a mere platform and had a westerly edge from which one might fall to the ground below, for he had during the day seen wagons loading and unloading there; -had from a distance observed carpenters in the act of repairing a floor, and in walking south on the platform just jprior to the accident had kept well to the-easterly side thereof. Under the circumstances he was required to exercise some care. The evidence does not disclose that he exercised any, and from the state of tlie record the jury were not justified in finding that lie was not guilty of negligence which contributed to his injuries.

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

Jenks, J., concurred; Gaynor, J., concurred in result; Woodward and Rich,

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