
    Elizabeth R. Schmitt, as Administratrix, etc., of Frederick Schmitt, Deceased, Respondent, v. The Metropolitan Life Insurance Company, Appellant.
    
      Negligence—-a workman of an independent contractor struck by an elevator in a shaft 'upon which he was working— contributory negligence, established, only by the testimony of an interested, witness — right of the jury to disregard it—■measure of damages.
    
    Under the terms of a contract, by which the Jackson Architectural Iron Works were to reconstruct certain elevator shafts for the Metropolitan Life Insurance Company, one of the elevators was to continue in.use while the work was going on upon the shaft through which it ran.' In this shaft Frederick Schmitt, the foreman of a gang’of men employed by the iron works, five days after he began the work,' was killed by the elevator, which, while descending, struck him as he was standing on a scaffold in front of the shaft and leaning over into the • opening to test the security of some fastenings. An employee of the insurance company named Smith had been running the elevator and was in the habit of giving warnings of his approach, in the elevator, as he passed up and down the shaft; but at certain times of the day he was relieved by an employee named Christopher, who testified upon the trial of an action brought by the administrator of Schmitt against the insurance company, that he gave no cautionary signals and that Schmitt had made trips with him once in a while, and that the witness did not give any signals, in going up and down, on any of those trips.
    The plaintiff recovered a verdict of $25,000.
    
      Held, that it did not appear conclusively that Schmitt was guilty of contributory negligence;
    That the jury, if they chose, were entitled to disregard and discredit the testimany of Christopher that he gave no signals, in view of the fact that he was employed by the defendant, and, with that testimony eliminated from the case, that Schmitt had a right under the evidence to rely upon an expectation that warning would be given of the approach of the elevator;
    That a verdict of $25,000 was excessive, and that it should be reduced to $15,000.
    Appeal by the defendant, The Metropolitan Life Insurance 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 1st day of July, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the-county of Kings, and also from an order entered in said clerk’s office on the 8th day of July, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      C. N. Bovee, Jr., for the appellant.
    
      John C. Robinson, for the respondent.
   Willard Bartlett, J. :

In the early part of the year 1896 a corporation known as the Jackson Architectural Iron Works entered into a contract with the defendant to do certain work in the reconstruction of a number of elevator shafts in the Metropolitan Life Insurance Company’s building, on the corner of Madison avenue and Twenty-third street in the city of New York. As to one of these elevators, which was designated as No. 2, the agreement provided that it should continue to be used while the work was going on upon the shaft through which it ran. The plaintiff’s husband, Frederick Schmitt, was the foreman of the gang of men employed by the Jackson Architectural Iron Works to fulfill the contract on their part. He began work on the shaft of elevator No. 2 on February 13, 1896, and lie was killed five days later, on the afternoon of the eighteenth, by the descending elevator, which struck him as he was standing on a scaffold in front of the shaft and leaning over into the opening to test the security of some fastenings there. It appeared that, during all.' the time that Schmitt had been at work about the shaft, the elevator had been' run frequently, but irregularly, by an employee of the insurance company named Smith, whose habit it was to warn the employees of the Jackson Architectural Iron Works as he approached them in going up or coming down, by calling out, “ Look out above,” or “ Look out below,” as the case might be. This man Smith, however, was relieved for a short time every day between eleven and twelve in the forenoon and at about four o’clock in the afternoon by another employee of the defendant named Christopher, who testified that he never gave any cautionary signals in the operation of the elevator; he also stated that Schmitt, the deceased, had made trips with him once in a while and that he did not give any signal in going up and down on any of these trips.

The plaintiff recovered a verdict of $25,000 damages at the Trial Term. , On the present appeal, there is no contention that there was not sufficient evidence to warrant the jury in finding that the defendant was negligent in operating the elevator so as to cause the death of the plaintiff’s intestate under the circumstances which have been stated, but it is earnestly insisted that the deceased was guilty of • contributory.. negligence, and that in any event the verdict was extremely excessive.

The imputation of contributory negligence to the plaintiff’s husbánd is based upon the evidence, to which reference has been -made, in regard to the manner in which the elevator was operated by Christopher when he relieved the other elevatorman, and upon the proof. indicating that the deceased had knowledge of the fact that Christopher was in the habit of omitting the usual warnings to the men at work about the shaft. While the testimony on this branch of the case was such as would have sustained a finding by the jury that the deceased was at fault and contributed to the accident by his own neglect, it does.not seem to us that the evidence necessarily required them to adopt this view. The proof as to Christopher’s custom to omit the usual signals and as to Schmitt’s knowledge of that custom proceeded solely from Christopher himself, who ivas in the employment of the defendant. Tins witness was not so- disinterested as to require the jury to accept his statements as true. The jury were at liberty to discredit' all that he said on this subject, and if his testimony was thus disregarded, as may well have happened, there would be nothing left upon which to base a finding of contributory negligence. The facts would then bring the ease, within the rule laid down in Anderson v. Northern Mill Co. (42 Minn. 424). There the plaintiff was a workman in the defendant’s sawmill, near a chute, down which heavy timbers were' impelled at irregular intervals and in rapid succession. In order that the plaintiff and the other men employed with him might have warning of the approach of these timbers and avoid danger, the mill company had adopted the precaution of having a signal given whenever a timber was sent down the slide. The plaintiff was injured by a heavy timber, which came down with great velocity and struck him without any warning of its approach- having been given. The Supreme Court of Minnesota, in affirming an order refusing a new trial to the defendant, said: “ The duty, in the abstract, of the appellant to give warning, by signal, of the coming of timbers through the slide, is not involved. It had -selected this method of notifying the men at"work upon the platform of the coming danger; it had adopted and practiced the custom of giving the warning, and the respondent had every reason to suppose such custom would be continued. It was negligence for the appellant to. omit to give the cautionary signal of approaching danger, and it was not negligence for the respondent, engrossed as he was in his work, to wholly rely upon it¡,>

While there is no doubt that the deceased voluntarily assumed the serious risks involved in'working in and about the elevator shaft while the elevator was being irregularly operated, the evidence indicates that during most of the time while he and his associates were employed there, the elevator never came into their neighborhood without a suitable warning of its approach. Even according to the. defendant’s view, which, as we have already seen, the jury were not bound to adopt, the-only times when the usual warnings were not. given were the occasions when, for a brief period twice in each day,, the charge of the elevator was committed to Christopher.

In our opinion, therefore, no error was committed by the learned trial court in denying the motion to dismiss the complaint; nor do. we find any material error in the rulings upon questions of evidence, or the instructions to the jury. It seems to us, however, that the verdict was much larger than the proof fairly'justified. In view of' the rule that the recovery in cases of this land, where the negligence of the defendant has occasioned the death of the person injured, the award must be strictly limited to pecuniary compensation for the actual loss suffered by the widow and next of kin, a. careful review of the testimony relating to the earning power and prospects in life of the plaintiff’s husband has led the court to the. conclusion that a verdict of $15,000 would really represent the. maximum measure of damages in this case.

The judgment must be reversed and a new trial granted, with costs, to abide the event, unless the plaintiff stipulates to reduce the verdict, to $15,000 and the extra allowance accordingly; but if such stipulation is given, the judgment so reduced will be affirmed, without costs.

All concurred.

Judgment and order reversed and new trial granted, costs to-abide the event, unless within twenty days plaintiff stipulates to. reduce, the verdict to $15,000 and the' extra allowance accordingly ;, but if such stipulation is given, the judgment so reduced and the. order denying motion for a new trial are unanimously affirmed,, without costs.  