Charles M. Hillyer, Respondent, v. Laight Street Stores Company, Appellant

Charles M. Hillyer, Respondent, v. Laight Street Stores Company, Appellant. Second Department, June 4, 1909. Negligence — contributory negligence — fall in elevator shaft. Where the plaintiff, who was inspecting certain hops in defendant’s warehouse, having been invited by the foreman to ride to the fourth floor on the elevator, walked with him to the elevator, which was situated at the end of a passage, and seeing the foreman raise the gate and step or reach into theshaft, as it later appeared, to reach the operating rope and lower the elevator, followed him into the shaft and falling to' the basement was injured, and the evidence showed that the passage was dark and that the situation might have been obscure to the plaintiff, who had just come in from the outside, a finding of the jury that the plaintiff was not guilty of contributory negligence will not be disturbed. Appeal by the defendant, the Laight Street Stores Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 3d day of July, 1908, upon the verdict of a jury for $4,000, and also from an order bearing date the 36th day of June, 1908, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes. Mortimer B. Patterson, for the appellant. William B. Hurd, Jr. [Herman H. Baker with him on the brief], for the respondent. [MAJORITY — 'Woodward, J.:] 'Woodward, J.: The defendant conducts a warehouse, and a firm known as Lilienthal Bi’others had a quantity of hops stored in this warehouse. Plaintiff was employed by Lilienthal Brothers as an inspector of hops. These hops were stored upon the fourth- floor. The plaintiff had worked there during the forenoon and went out to lunch. On his return he met the foreman, who volunteered to take him upon the elevator, which appears to have been used for this purpose, ' though probably a freight elevator. They had to walk through a passageway, the elevator being1 at the end thereof, and when they had reached the elevator shaft the foreman raised the gate and stepped .or reached into the shaft, as he says, for the purpose of reaching the operating rope to lower the elevatox1, which was above, when the plaintiff followed in and fell to the basement below. Tliei’e was a conflict of evidence' as to the physical surroundings; how dark it was, and how much light was afforded; and what the plaintiff might or might not have discovered if he had looked, and it is urged upon this appéal that the evidence shows the plaintiff to -have been guilty .of negligence as a matter of law, this being the only question seriously 'urged. -There appears to be no question that the place was dark; that it inquired artificial lighting, and 'a situation which might have been seen by one who was entirely familiar with the place, and who had not been out in the broader light, might be very obscure to one who had been there only a half dozen times more or less, and who had. just come in from the outside. From the -evidence we are persuaded that the jury had a right, to find that the plaintiff, invited by defendant’s foreman to x-ide in the elevatox1, had a right to assume; when the gate was opened and the foreman disappeared in the shaft, that it was ready for him to enter, and that he was-not bound to see all that a careful investigation might have disclosed. Under the ruleiaid down in Tousey v. Roberts (114 N. Y. 312, 316) and ap.pi'oved in Wilcox v. City of Rochester (190 id. 137, 141), the case was' propeidy submitted to the juiy, and the verdict shoxild not be disturbed. . The judgment and oi’der should be affiraied. Present — Woodward, Jenks, G-aynor, Burr and Miller, JJ. Judgment and order unanimously affirmed, with costs.