
    (89 Hun, 498.)
    BURK v. EDISON GENERAL ELECTRIC CO.
    (Supreme Court, General Term, First Department.
    October 18, 1895.)
    1. Negligence—Evidence—Burden of Proof.
    In an action based on negligence, the burden is on plaintiff to prove both negligence and freedom from contributory negligence.
    
      % Same—Contributory Negligence.
    In an action for injuries causing the death of plaintiff’s intestate, it appeared that while he was passing through an elevator shaft, in order to go from one part to another of defendant’s cellar, where he was working, a piece of iron pipe, used as a roller in moving heavy articles into the elevator, fell through a space between the elevator and the side of the shaft, and struck intestate on the head. There was a doorway 36 feet from the elevator shaft, through which intestate could have passed in going from one part of the cellar to the other. Held, that a recovery was barred by intestate’s contributory negligence, though the attention of defendant’s foreman had been called to such space, and that the use of pieces of iron pipe as rollers, in loading the elevator, was dangerous.
    Appeal from circuit court, New York county.
    Action by George Burk, as administrator of Charles Burk, deceased, against the Edison General Electric Company, to recover damages for alleged negligence of defendant, causing the death of plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Beversed.
    Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
    Arthur P. Hodgkins, for appellant.
    Frederick W. Holls, for respondent.
   O’BRIEN, J.

This action is brought to recover the statutory damages for the negligence of the defendant, resulting in the death of plaintiff’s intestate. The deceased was at the time 21 years of age, and had been employed in the Ringler Brewery for nine months previous to his death. At the time of the accident the defendant company were putting an electric plant into the brewery, and in the course of its work it became necessary to hoist some heavy machinery on the elevator. This elevator runs in a shaft beginning in the cellar, and extending to the top of the building. The floor of the cellar is 35 feet below the first floor, where the machinery was being rolled. The elevator did not quite fill the dimensions of the shaft, and, when the floor of the elevator was on a level with the first floor of the building, there was an interval of 4-J inches between the edge of the car and the sill of the floor. The attention of the foreman of the defendant was called to this open space, and he was warned that the use of pieces of iron pipe, as rollers, which were so small as-to fall readily between the elevator and the floor, would be dangerous. Notwithstanding such warning, the defendant’s employés permitted one of the iron rollers which were being used to fall through the opening into the cellar, where it struck the deceased on the head, inflicting the injuries from which he died. The elevator shaft was situated at a point where there is a division line between the east and west cellars, which division line is a heavy wall, about six feet thick. The elevator was inclosed in walls which were approximately six inches thick. Both the east and west,cellars are places for cold storage, being in fact parts of one cellar. It is possible to pass from the east to the west cellar by means of doorways in the elevator shaft, but these doors were kept constantly closed. Besides these doors, there were two openings between the east and west cellars; one being 27 inches wide and about 4 feet high, and the other a full-height doorway, situated about 36 feet from the side of the elevator shaft. Neither of these openings has any door. The deceased had been at work in the westerly cellar, with another workman, washing barrels, and went from there, through the regular doorway, into-the easterly cellar, with his companion, for the purpose of drinking a glass of beer. On their return they both went through the elevator shaft, and while so passing the deceased was struck by the iron roller as described. There was a rule in the brewery which forbade the employés using the elevator shaft as an ordinary passageway, but it appeared that it was frequently so used; and there was no evidence that the deceased knew of the rule, although his companion did. The right of the plaintiff to recover upon these facts was submitted to the jury, and their verdict was favorable to the plaintiff; and from the judgment so entered, and from the order denying a motion for a new trial, this appeal is taken.

The question of defendant’s negligence, we think, was one properly submitted to the jury, but the more difficult and serious question is' whether the facts would warrant the inference that the deceased was free from contributory negligence. The burden was upon the plaintiff of establishing, not only the negligence of the defendant, but that his intestate was free from any negligence which contributed to the accident. Was the burden thus placed upon the plaintiff, of showing the absence of contributory negligence, sustained? In disposing of this question, we shall assume that the deceased was not aware of the rule forbidding the use of the passage through the elevator shaft. and that he is to be held responsible only for incurring the obvious dangers which every reasonable man should anticipate from its use. If one, without need or cause, puts himself in a position of apparent danger, and, while in that position, suffers an injury resulting in death, it cannot be maintained that he has not contributed to such injury. In view of the other means of communication furnished, it cannot be claimed that it was necessary for the deceased to pass through the elevator shaft; and the only inference that the testimony, affords as to the reason for his so using it is the inconvenience that would result, either from using the smaller passage, next to the elevator shaft, or the larger passage, which was sufficiently ample, though some 36 feet away. Undoubtedly, to save the steps and time required to return by the passage through which he had entered, the deceased deliberately selected the passageway through the elevator shaft. That such an adventure was obviously dangerous,, we think, is evident; and it would be going beyond reasonable bounds to infer that a person who had reached the age of manhood, and who was familiar with the use of the elevator and shaft, could have approached it without a feeling that he was putting himself in a place of danger. It is to be remembered that this elevator was a mere platform, used only for freight, and that articles, heavy and light, large and small, were constantly being moved on and off at different floors; and when we recall the further fact of the space between the flooring of the building and the floor of the elevator, which would permit of articles falling, it would be difficult to conceive how one familiar with the surroundings and use of such an elevator could regard the use of the elevator shaft as a passageway as other than dangerous. Upon this proof, we do not find that the burden placed upon plaintiff, of showing that the deceased was free from contributory negligence, was sustained; nor do we think that, in any reasonable view to be taken of the evidence, the inference can be justly drawn that the deceased was free from contributory , negligence. Where, as here, means of communication between the different portions of the cellar were furnished, one of which was obviously dangerous, and the ethers safe, and where one, for his own convenience, or to save the few steps required to use the means of safety, chooses to walk into danger, it cannot be said that the evidence which the law requires is thereby furnished, to entitle him to recover damages for injuries received while in such a position. Upon the ground, therefore, that the plaintiff failed to prove the absence of contributory negligence on the part of the deceased, the judgment should be reversed, and a new trial ordered, with costs to appellant, to abide the event. All concur.  