
    Mary A. Guenther, Adm’rx, Pl’ff, v. James Lockhart, Def’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    
      ' NEKLIGEirCE—COBTBrBUTOBY.
    Plaintiffs intestate while working in the employ of defendant was killed' by falling down an elevator shaft. Deceased had worked there two years and was a foreman. The employes were instructed not to use the elevator except when engaged in moving freight. Deceased ascended in the elevator to the third floor when there was no freight on the elevator, got off, stated to a workman that he was going up for some mouldings and then out to see a train, and then started toward the elevator, and a few seconds later was found at the bottom of the shaft, and the elevator was found at. the fourth floor. It was shown that on a previous occasion he had failed, to stop the elevator. Held, that he was not shown to be free from contributory negligence, and a recovery could not be had.
    Motion for a new trial upon a case containing exceptions. The-action was brought by the appellant as administratrix of the estate of Samuel Guenther, deceased. The plaintiff was non-suited and the exceptions were directed to be heard in the first instance; at the general term.
    
      James A. O'Grady, for app’lt; Raines Brothers, for resp’t.
   Lewis, J.

The defendant was the lessee and occupant of a four-story building in the city of Rochester, which he used for-manufacturing picture frames. He used in his factory an elevator for the purpose of moving freight from floor to floor. The openings into the elevator shaft from the different floors were protected by doors which opened into the rooms and were fastened when closed by a door latch. The employes of the factory were-, "required to see that the doors were kept closed. These openings-into the elevator shaft were not furnished with the trap or automatic doors required by the acts of 1886 and 1887. The well-hole or shaft was practically dark when the doors were closed. The rules of the factory prohibited the employes from using the elevator except when they were engaged in moving freight. A sign was attached to the cross-beam where the cable was attached, so that it could be seen as a person stepped upon the elevator,, reading, “For freight only. Lockhart & Powell.”

The deceased had been employed in this factory for two years-at the time of his death, and had been for some time foreman of the hands working upon the third floor of. the factory. He was-familiar with the elevator and with the rules of the factory governing its use. On the morning of December 17, 1888, he used the elevator for the purpose of elevating himself to the third floor, there not being at the time any freight on the elevator. He opened the door leading to the third floor, passed along near the witness, August Kramer, Jr., having a newspaper in his hand, and read from the paper that the first train was going to stop at the Central Park station twenty minutes past seven, and remarked that he was going up stairs to get some mouldings and then was going out to see that train, and started towards the elevator, as Kramer testified, on a slow trot, and in a few seconds the alarm was given that lie had fallen down the elevator shaft. It appears from the evidence that the moulding was of such a length that it could not he transported upon the elevator ; that it weighed only a few pounds and could easily have been carried in the hand. He was found at the bottom of the elevator shaft, having received injuries from which he soon died.

The evidence tends to show that he probably failed to close the elevator door as he came from below to the third floor. The case contains no evidence tending to show that any other person interfered with the elevator after the deceased left it at the third floor. He probably failed to stop the elevator on leaving it at the third floor, and it passed on up to the fourth floor, where it was found after the accident; in his hurry when returning without proper examination, he stepped off into space and fell down the shaft. The evidence shows that he had been known, before the accident, to neglect to stop the elevator when leaving it.

The trial court at the close of .plaintiff’s evidence held that she had failed to make a case, and directed that the plaintiff be non-suited.

We think he decided correctly.. While the defendant was negligent in not providing the safe guards required by statute, he had not assumed to furnish an elevator to be used by the employes, except as they were engaged in transferring freight, and when the deceased used it for his own convenience, he. assumed .the risks attending its use. He was an intelligent man; was acting as foreman of the hands employed upon the third floor of the factory, and had been using the elevator for two years; knew all about its construction and appliances; he was aware that the automatic trap or door required by the statute had not been provided ; he fully comprehended the situation, and chose to use it for his own convenience, and, under the circumstances, it must be held that the defendant did not owe the deceased the duty to furnish the appliances required by the statute.

The plaintiff, therefore, failed to show the deceased free from negligence contributing to his death. If he did not, in fact, fail •to stop the elevator as lie left at the third floor, the evidence shows that he approached the shaft in a hurried and apparently thoughtless way, and must have stepped into the shaft without stopping to ascertain if the elevator was in fact at the third floor, where he supposed he had left it.

The authorities referred to by the appellant have been examined, and we think fail to justify a recovery in a case like this.

The motion for a new trial denied, with costs, and judgment ordered for the defendant on the nonsuit

Dwight, P. J., and Macomber, J., concur.  