
    Frederick Krause, Plaintiff, v. Robert Gair Company, Defendant.
    Second Department,
    January 14, 1910.
    Master and servant—negligence—injury toy fall of freight elevator — use of elevator toy employees — acquiescence of master.
    Although a master formerly posted a notice that employees riding on a freight elevator did so at their own risk, and although an employee during a former term of service knew of the notice, it is for the jury to say whether the notice was in force at the time of- an injury caused toy the elevator when it is shown that the notice had disappeared during the ■ plaintiff’s second term of service, that the master permitted the employees to make daily use of the lift, and that the plaintiff on one occasion -was told to use it.
    Thomas, J., dissented.
    Exceptions ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term on the 25th day of January, 1909.
    
      Rúfus O. Gatlin, for the plaintiff.
    
      G. Glenn Worden [Frank V. Johnson with him on the brief], for the defendant.
   Jenks, J.:

This is an action by servant against master for negligence. The servant’s duty required him to go out from one of the master’s shops into another. Instead of descending the stairways of the first workshop he used a freight lift or elevator that was descending, loaded with wares and carrying certain other employees. The lift fell and the plaintiff was injured. The servant had worked for the master for seven years, had left that service, had returned to it and had worked in his second term for a month. It appeared that notices were put up near the freight lifts with the legend, “ This is a freight elevator. Employees ride at their own risk.” Occasionally the notices would fall off or disappear, but the plaintiff testified that he did not understand that the rule was changed ” thereby. There is evidence .that such a notice was not placed near this particular freight lift during the second term of the plaintiff’s service! The plaintiff was dismissed upon the ground that he had notice that if he used the lift he took the risk. His exception was directed to be heard at the first instance in this court. We think that the exception was well taken and that there must be a new trial. There was testimony that when the plaintiff worked in his first term he and the other employees were accustomed to use the lift daily. There was also testimony that some of the employees usually made use of the lift when' they wished to go up or to go down in the building for a considerable distance; that some of the employees rode in the lifts every day and that they were permitted to make such use of them by the man in charge of the lifts. The plaintiff testified that during his first term of service the president of the defendant told him to use this lift on more than one occasion. Tlié court did elicit that this instruction was given to the plaintiff when he was on the sidewalk with cases and that he was told to “ hurry up and get those cases .up.” But in answer to the court’s question : Q. I know, but did he tell you to get on the elevator in preference to going up the stairs ? ” he said, “ Yes, sir, he told me to get on.” This statement was denied by the president of the defendant. And the defendant offered testimony counter to that as to the uses of the lift, ymt part of the testimony as to use was elicited from defendant’s own witnesses. We think that the court erred in dismissing the plaintiff upon the ground stated, inasmuch as there was a question for the jury whether, in view of the evidence the notice was in full force at the. time of. the accident, or whether there was an acquiescence by the master in such use of the lift as was -made of it by the plaintiff. (McNee v. Coburn Trolley Track Co., 170 Mass. 283; Aken v. Barnet & Aufsesser Knitting Co., 118 App. Div. 463 ; affd., 192 N. Y. 554; Labatt Mast. & Serv. § 232.) We do not pass upon any other question.'

Woodward, Burr and High, JJ., concurred; Thomas, J., dissented.

Plaintiff’s exceptions sustained and new trial granted, costs to abide the event.  