
    Annie E. Graham, as Administratrix, etc., of William J. Graham, Deceased, Respondent v. George R. Williams, Appellant, Impleaded with John M. Underhill.
    
      Master and servant—injury to employee after dark by fall down elevator shaft when attempting to re-enter elevator—failure to ascertain if elevator is in position.
    
    Order affirmed, with costs. No opinion. Hirschberg, P. J., Hooker and Rich, JJ., concurred; Gaynor, J., read for reversal, with whom Miller, J., concurred.
    Appeal from an order of the trial judge setting aside a dismissal of the complaint at the close of the case and granting a new trial.
   Gaynor, J. (dissenting):

The plaintiff's decedent worked for the defendants in their paper box factory. He went up by a small freight elevator to the floor to bring down some cardboard. It was after dark, and there were no lights provided on that floor. He stopped the elevator and went for the cardboard. On returning he stepped into the elevator shaft and fell to the bottom of it. He supposed he was stepping into the elevator, but while he was away from it, it had gone up to the top of the shaft owing to a defect in its machinery. If there had been light to see that the elevator was not there, there could be no recovery for the negligence of the decedent in not seeing that the elevator was not there. (Fink v. Hartog & Beinhauer Candy Co., 112 App. Div. 887 ) .Does the darkness make a difference? No, because it was the duty of the decedent to use all reasonable care to ascertain if the elevator was there before stepping into the' shaft. That there was no light did not excuse him from this duty. On the contrary, if he could not see, it was his duty to feel, and if he had done so he could not help having found that the elevator was gone, any more than he could if there had been light. The law cannot permit that it be left to the jury to say as a matter of fact whether it is negligence in such a case to step into an elevator shaft without, first ascertaining that the elevator is there, any more than whether it is negligence to go upon a railroad crossing without looking and listening, or listening when it is not possible to look. The order should be reversed.  