APPEAL by the plaintiff, Patrick Kennedy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of April, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case on a trial at the New York Trial Term.
Richard J. Donovan, for the appellant.
Herrick C. Allen, for the respondent.
On the 11th day of January, 1908, the plaintiff while in the employ of defendant and engaged in the performance of his duties as a porter in cleaning the shaft of a passenger elevator in the basement of the defendant's department store in the city of New York, was struck and severely injured by counterweights of the elevator which descended not owing to any accident to the machinery, but by the operation of the elevator by the regular operator thereof, Clark, who was also in the employ of defendant and this action is brought to recover damages for the injuries thus sustained.
The complaint contains two counts, in both of which liability is predicated upon the same state of facts; excepting that in the first, a cause of action at common law is alleged and the second attempts to allege a cause of action under the Employers' Liability Act. The second count was abandoned on the trial. The question presented for decision on this appeal is whether the plaintiff alleged and proved a cause of action against his employer for negligence under the common law.
The plaintiff alleged in the first count of his complaint, and his testimony is to the same effect, that the foreman of the porters directed him to clean the shaft; that in accordance with the custom which had existed since defendant took charge of the store in October, 1896, and for two or three years prior thereto during the occupancy thereof by defendant's predecessor, during all of which time plaintiff was employed in the same capacity, he thereupon informed the operator of the elevator
that he was about to clean the shaft in the basement and directed said operator to post the usual notices; that thereupon framed notices provided for that purpose, printed in large type, were posted upon the several floors at the entrance to the elevators on which were the words 'Elevator not running,' and the elevator was brought to a stop at the first floor where it was the duty of the operator, according to the custom, to hold it until notified by the plaintiff that his work in the shaft below was completed; that notwithstanding this, after the plaintiff had been working in the shaft below the elevator for a period of about forty minutes the operator moved the elevator to about the sixth floor causing the counterweights to descend in the grooves in which they slid and to come in contact with plaintiff; that when the elevator shafts above the basement floors were cleaned by the porters like notices were hung out and the porters stood upon the elevators in doing their work and signaled the operator from time to time as it became necessary to change their position.
The negligence charged is that the defendant failed to properly protect the plaintiff, to make and enforce proper rules with respect to giving warning, to refrain from operating the elevator, to post sufficient notices and to instruct its servants properly, and that it negligently caused the elevator to be operated while plaintiff was in the basement below, and negligently permitted the elevator to become and remain out of repair so that it would start without the application of power, and employed incompetent servants. The only material evidence given bearing on any of these theories of negligence has already been stated. There was no evidence of any defect in the elevator, and no evidence that any of the operators were incompetent, other than might be inferred from moving the elevator on this occasion in violation of the custom; but there is no evidence that the operator ever did this before. The evidence shows that all necessary notices were posted as already stated. A reversal of the judgment is sought principally upon the ground that the defendant neglected to adopt and promulgate rules, and to properly instruct its servants.
The plaintiff had, I think, received all necessary instructions, and he assumed the risk of any negligence in this regard, for
he was fully acquainted with the manner in which the work was done and knew the danger quite ...