
    William Long, Respondent, v. The Mutual Life Insurance Company of New York, Appellant.
    
      Negligence—injury from the use of a freight elevator by one knowing that such use was prohibited.
    
    A corporation owning an office building, which, for the convenience of its tenants, provides freight elevators and places in front thereof a sign, “No one shall operate this elevator other than tlie employees,” and which provides a bell by which those desiring an employee to operate such elevator can summon him, is not liable to a person familiar with the premises and with the regulations concerning the use of the elevator, who, in the absence of the elevatorman, opens wider a door which was already partially open leading to one of the elevators, enters such elevator and attempts to pull some freight into the elevator,, and while so doing is injured by the elevator, which for some unknown cause-moves upward, catching his feet between the floor of the elevator and the floor - above.
    . Appeal by the defendant, The Mutual Life Insurance Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 5th day of March, 1901, upon the verdict of a. jury, and also from an order entered in said clerk’s office on the 4th day of March, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    This appeal was transferred from the fourth, department to the. third department.
    
      Adolph Rebadow, for the appellant.
    
      Arthur W. Decker and Eugene M. Bartlett, for the respondent.
   Kellogg, J. :

It appears from the testimony in this case that defendant was the owner of a building in the city of Buffalo, the upper rooms of which Were rented as offices; that for the convenience of occupants of the offices, passenger elevators were provided, also freight elevators^ the entrance to the freight elevators being in the basement of -the building, and the access to the rooms where freight was received was cut off by closed doors, and access to. the freight elevators was further protected by doors which opened on hinges outward. When fully opened the entrance to the elevators was some six feét in width. In front of the elevator was a sign which has always been there : “No one shall operate this elevator other than the employees.” It is not claimed that any one other than the employees of defendant had ever operated them, or attempted to do so. It appears that an operator was not in constant attendance upon the freight elevator, owing to these elevators being only in occasional use; but a bell was provided for those admitted to the freight room and desiring the use of the freight' elevator by means of which an operator was called. The doors admitting to the elevator were usually kept closed and latched, but not locked. Any one might open them. The plaintiff was familiar with the premises, and knew that no one but the defend.ant’s operator was permitted to interfere with the elevator. He had aided- in carrying trunks and freight often by means of these elevators. . He was, as witness, asked this question: “ You always got strict orders you were not to interfere with the elevator or try to run it ? ” Answer: “ I did.” He says he had often to wait for the operator to come. He does not say that he ever before tried to put a trunk or any freight upon the elevator until the Operator came to supervise it, or to direct "into which of the freight .elevators to place it. On the day of the accident the plaintiff and his partner took to the building a large sample trunk weighing 200 to 250-pounds. They were admitted into the freight room. The operator was absent. The bell was rung, and plaintiff’s partner or employer setting down the trunk in front of the elevator said to plaintiff: “You stay here and I will go up to get the janitor,” meaning the operator of the elevator—and then went in search of the operator. The plaintiff says the door admitting to one of the elevators was partly open, nearly two feet, but not wide enough to admit of the trunk; that he opened the door wider and immedi.ately attempted to roll the trunk in. This he was unable to do and he then entered the elevator and attempted to pull the trunk in. While making these efforts, for some unknown cause, the elevator moved upward and he was caught by his feet between the elevator floor and floor above, and injured.

There is no question raised respecting the proper construction and proper repair of the elevator. The court instructed the jury that defendant could not be found negligent in not furnishing a safe elevator. It was a safe appliance. It does not appear that any failure of defendant to furnish an operator in constant attendance was to be considered negligence. The charge of the court to the jury was very lengthy, and resolved itself around the general proposition that if the defendant was in any respect negligent and plaintiff was not negligent the jury should find for plaintiff. ' It seems to have been left for the jury to discover wherein defendant was negligent. It was apparently submitted to the jury whether it was not the duty of defendant to keep the door of the freight elevator -closed when not in use; and, if they so found, they should find for plaintiff. The complaint charges defendant with negligence in two particulars, and in two only.. One is the furnishing of a defective, unsafe and out-of-repair freight elevator. This charge, the court, said, was not proven, and the court took away its consideration from the jury, and in this, we think, the court committed no error. The-other charge of negligence is that defendant did negligently and carelessly permit the said elevator door * * * to remain open and unguarded in the .basement of said building.” If this were, a. case of one falling down the elevator shaft, because of an open and unguarded door, the open door might be a material feature r— because it might then be regarded as the approximate cause of the accident. But to the plaintiff in this case, the open door, or door partly open., was no menace. It was to him in no sense dangerous. He saw it. partly open. The dangers beyond the open door he himself invited by opening the door wider and undertaking h> possess himself of the. elevator and all the dangers accompanying such possession. The-plaintiff’s knowledge by previous use of these freight elevators; the-positive instructions given to him not to interfere with the elevators ; that only employees of the defendant had a right to operate-them; the operator known to plaintiff to be absent, how could a. partly open door, under such facts and circumstances, be interpreted as an invitation to plaintiff to take possession of the elevator and load it. With his freight ? I see no single fact or circumstance in this case-which can be said to in any degree authorize the plaintiff to so possess, himself of the elevator in the operator’s absence. The cases cited by the' learned counsel for respondent of passenger elevators with open doors have no application here; the facts and circumstances and usage are entirely different. There was no question for the jury,, and the action should have been dismissed on the defendant’s, motion.

The judgment is reversed, a new trial granted, with costs to-appellant to abide event.

All concurred, except Smith, J., not sitting.

Judgment and order reversed on the law and the facts, new trial granted, with costs to appellant to abide event.  