
    (159 App. Div. 505.)
    SPITZER v. HEALY et al.
    (Supreme Court, Appellate Division, First Department.
    December 19, 1913.)
    Master and Servant (§ 330)—Death oe Servant—Evidence—Sufficiency.
    In an action for the wrongful death of a servant of a contractor, while placing fireproof partitions around the elevator shaft of defendant’s building, evidence held insufficient to show that the servant, who met his death in the elevator shaft, was free from contributory negligence, and that defendant’s operator was guilty of negligence.
    [Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1270-1272; Dec. Dig. § 330.*]
    Raughlin and Hotchkiss, JJ., dissenting.
    Appeal from Trial Term, New York County.
    Action by Flora Spitzer, as administratrix of Joseph Spitzer, dé-1 ceased, against A. Augustus Healy and another. From a judgment for plaintiff, and an order denying their motion for new trial, defendants appeal.
    Reversed and remanded.
    Argued before IÑGRAHAM, P. J., and McLAUGHLIÑ, LAUGH-LIN, SCOTT, and HOTCHKISS, JJ.
    James J. Mahoney, of New York City (Adolph F. Bruenner, df Brooklyn, of counsel), for appellants.
    Morris Cukor, of Ñew York City, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   SCOTT, J.

The plaintiff as administratrix of Joseph Spitzer, deceased, has recovered a judgment for damages for the death of her intestate, caused, as it is alleged, by the negligence of appellants’ servant in operating an elevator. The appellants, owners of a loft building in the city of New York, had employed certain contractors named Smith to remove the old sheet iron partitions inclosing the elevator shafts in the building and to put up fireproof partitions in place thereof. Plaintiff’s intestate was an employé of the contractors, and immediately before the accident had been working on the seventh floor of the building.

There were three elevators in a row, the center one being used as a passenger elevator, and the outside ones as freight elevators. It was in the shaft of one of-the latter elevators that plaintiff’s intestate was killed. At this time the old doors had been taken pff, and deceased and another workman had been engaged in putting in place iron casings or lintels to receive the new doors, which were to be installed by another contractor. There was an iron beam at the floor level, running across the elevator shaft at right angles to the line of the opening into the shaft. The elevator car was balanced by heavy iron counterweights which descended as the car ascended, and vice versa, and which ran quite close to the iron beam above described. The contractors had arranged with the engineer and elevator operator that the car itself should be used as a platform or scaffold for the men when obliged to work within the shaft, and a platform was constructed on top of the car for this purpose. Shortly before the accident happened deceased and another man had been standing on this platform prosecuting the work. A call came for the elevator to go to a lower floor, and by direction of the operator deceased and his coworker had left the car and landed on the seventh floor; the operator saying that he would return shortly. For some reason he was detained for about half an hour. When he started the car up, the counterweights, of course, descended, and as they did so caught deceased, who was standing wholly or partly on the cross-beam, and crushed him to death.

The negligence attributed to the operator is that he failed to give warning, by calling out, before he started his car up. He swears that he did call out, but there was evidence from which the jury might have found that he was in error in this respect. On the whole evidence it is difficult to say just how deceased came to be where he was when he was struck. There was evidence tending to show that, at times, men engaged on similar work in the building were in the habit of standing with one foot on the floor and the other foot on the cross-beam or girder, standing, as some of the witnesses expressed it “catecornered,” and one witness said that some 10 or IS minutes before the accident he had seen the deceased in this position. No one else saw him there, although there were others in a position to see, and it did not appear that any work on which he was then engaged required him to so stand. Furthermore, the position in which his body lay after it had been crushed by the counterweights indicated that he must have been standing with both feet on the cross-beam.

It is difficult to accept this version of the accident. But, even if it were accepted, it would not follow that the plaintiff is entitled to recover. The situation was that deceased had been working on top of the elevator car, that he had been told, and had every reason to believe, that the car would soon return, and might return at any moment. Under these circumstances, it seems to be clear that he voluntarily placed himself in a position of danger, without taking any precaution by prearrangement with the operator, or by calling out, to avoid the risk of an accident. Nor was the operator called upon, under all the circumstances, to anticipate that deceased would be in a position involving danger, not from the ascending car, but from the descending counterweights. The case, as it seems to us, while it does not actually resemble as to the facts Lynch v. Elektron Mfg. Co., 195 N. Y. 171, 88 N. E. 48, and Anderson v. Thompson-Starrett Co., 153 App. Div. 740, 138 N. Y. Supp. 762, still falls within the principle laid down in those cases.

Upon a careful reading of the whole case we cannot avoid the conviction that the evidence failed to establish either the negligence of appellants, or the freedom from negligence on the part of plaintiff’s intestate, and that the verdict was influenced more by sympathy than by a calm consideration of the evidence. For this reason, we are unwilling to sustain the recovery.

Judgment and order appealed from reversed, and a new trial granted, with costs to appellant to abide the event.

INGRAHAM, P. J., and McLAÜGHLIN, L, concur. LAUGH-LIN and HOTCHKISS, JJ., dissent.  