
    Frank Wolf, Appellant, v. John J. Devitt, Respondent.
    
      Negligence — injury from, a servant falling into an elevator shaft — assurance by the master that the elevator was “ right straight at the floor ” — questions of negligence and contributory negligence are for the jury.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant, it appeared that the defendant’s manager instructed the plaintiff to go down to the cellar of the building and bring up some barrels of potatoes upon the elevator; that, in giving this direction, the manager said: “The elevator is right straight at the floor; go down and get the potatoes; ” that the approach to the elevator shaft was dark, the nearest light being twenty feet away; that the elevator bad, in some man-" ner, been moved from its position at the floor from which the plaintiff sought to enter it and that the gate which ordinarily protected the shaft in front of the elevator had fallen down; that in consequence of these conditions the plaintiff fell into the shaft.
    
      Meld, that the questions whether the defendant was guilty of negligence and whether the plaintiff was free from contributory negligence were properly submitted to the jury, and that it was error for the court to set aside a verdict rendered in favor of the plaintiff.
    Goodrich, P. J., and Woodward, J., dissented.
    Appeal by the plaintiff, Frank Wolf, from an order of the Supreme Court, made at the Westchester Trial Term and entered in the office of the clerk of the county of Westchester on the 8th day of Hay, 1902, setting aside a verdict in favor of the plaintiff for $1,500, and granting the defendant’s motion for a new trial.
    
      Emerich Kohn [Abraham Brekstone with him on the brief], for the appellant.
    
      John F. Brennan, for the respondent.
   Willard Bartlett, J.:

In this case the learned trial judge has set aside a verdict in favor of the plaintiff on the ground that the proof failed to establish the negligence of the defendant or the plaintiff’s freedom from contributory negligence. I am of opinion that the evidence suffices to sustain the verdict on both issues.

The plaintiff, who was in the employ of the defendant, was injured by falling into an elevator shaft which he was approaching pursuant to a direction from the defendant’s manager to go down to the cellar of the building, in which the elevator was situated, and bring up three barrels of potatoes with the elevator. The approach to the elevator shaft was dark, the nearest light being twenty feet away, and the testimony of the plaintiff authorizes the inference that the accident was caused by the fact that the elevator had in some manner been moved from its position at the floor from which he sought to enter it, and that the gate which ordinarily protected the shaft in front of the elevator had fallen down the shaft. It is to be observed that the manager of the defendant’s business, in directing the plaintiff to go down and get the potatoes, said: “ The elevator is right straight at the floor; go down and get the potatoes.” Here we have a specific direction which clearly contemplated the use of the elevator by the plaintiff, accompanied by an express assurance to the plaintiff that the elevator was in a position in which he might safely enter the shaft. It can hardly be held, as matter of law, that a servant, seeking to obey the directions of a master and relying upon his assurance that the conditions would allow him to do so with safety, can be deemed to have assumed the risk which resulted in injury or to have been guilty of contributory negligence; and, on the other hand, it seems to me that negligence on the part of the master can well be predicated upon his failure, under the circumstances, to provide the servant with a safe place in which to do the work which his representative directed the servant to perform.

In my opinion the learned trial judge was right in denying the motion to dismiss and in leaving the issues to the jury, as he did, in an extremely fair and well-considered charge. I think that the order setting aside the verdict was erroneous, and that it-should be reversed and the judgment reinstated.

Hirschberg and Hooker, JJ., concurred; Goodrich, P. J., and Woodward, J., dissented.

Order setting aside verdict reversed, with costs, and judgment directed upon the verdict in favor of the plaintiff.  