The plaintiff sought to recover damages for personal injuries inflicted upon him by the falling of a dumb waiter in an apartment house owned by the defendant. No evidence was given on the part of the defendant: The evidence adduced by the plaintiff tended to show that the defendant was the owner of an apartment house at 158 West Fifteenth.street in the city of New York. In that house and for the use of the tenants there had been furnished by the defendant a dumb waiter, by means of which groceries and other articles could be hoisted from the ground to the apartments occupied by the different tenants on various floors. This dumb waiter ran in a shaft. It was hung by. a rope passing over a pulley at the top of the building, and at the other end of the rope was attached a weight which acted as a counterpoise, running down one side of the shaft. Another rope, which ran over a pulley at "the top of the shaft, was fastened to the machine and hung down at the side of the shaft. • By pulling upon this latter rope the machine could be raised and lowered at will. The plaintiff went to the dumb waiter to deliver a can of milk to a tenant living upon one of the upper floors, and put the can upon the waiter and raised it. To enable him to see whether the dumb waiter with its load had reached' the floor for which it was intended it was necessary that he should place himself partly in the shaft. As he stood partly within the shaft, after having placed the waiter at the proper floor by pulling upon the rope, the elevator fell and he received the injuries complained of, to recover for which he brought this action. The complaint was dismissed upon the trial.
*240It was. made to appear on the part of the plaintiff by one of the tenants of the building that, a month before the dumb waiter fell, the witness had examined the rope by means of which it'was suspended ; that he found it very much worn, and one or two of the strands frayed out, and that he called the attention of the janitor to the defective rope. It does not appear that any new rope was furnished, but it does appear by the testimony of the same witness that, after he heard of the accident, he looked at the rope and found it had. been broken. . The defendant insists that when it was made to appear to the janitor that the rope was defective it was his duty to replace it; that the presumption is that he performed his duty, and that the burden lay upon the plaintiff to give testimony to remove that.presumption; and that because of his failure to give that-testimony he did not prove that the defendant was guilty of negligence.
With this .contention we do not agree. When the plaintiff had given the testimony tending to show that the rope was defective, and followed that up by other testimony that the accident was caused by the breaking of a rope which, if. sufficient, would have held the load put upon the dumb waiter, he had made all the proof that >was necessary to charge the defendant with a liability for the accident, because -he"had made it appear that there was a defect..in the- rope, and that.the defendant’s janitor had been notified of the rope’s defective condition so long..before the accident that there was an opportunity to repair it,, and that.it should have been repaired. Whether it was repaired or not was not.within the knowledge of the plaintiff. The proof having been made that the rope was defective, the- presumption Avas that the condition of affairs thus made to appear continued, unless evidence was offered tending to- show that the defective rope had been replaced. In. the absence of. that evidence, the plaintiff had the right to rely upon the testimony which, was given; and the question Avas for the' jury whether the accident Avas caused by the defective rope. "
■ It is claimed too by the defendant that the plaintiff Avas guilty of contributory negligence in being Avithin the shaft at the time the dumb waiter fell. It is quite tnie that there Avas no necessity, for the plaintiff to stand inside of the shaft, except so long as was necessary to enable, him to see that the dumb Avaitef had reached the floor at which he intended to put it. It appears that, AA'hile he was doing *241that, it was necessary that he should be sufficiently within the shaft either to see what floor the dumb waiter had reached or to hear the voice of the tenant advising him that the proper place had been reached. Of course when he had accomplished that it was his duty to get out of the shaft. But whether or not he had so far finished,, that, when the rope broke and the dumb waiter fell upon him, it. was negligent for him to remain any longer inside the shaft, was-clearly a question for the jury. There was no evidence except that of the plaintiff upon, that point; he says that in holding the rope he had to bend in and look up to see if the customer was there ; that at the time of holding the rope he leaned forward a little, no doubt after Mrs. Trimmer (the tenant) had said .all right, having both of his hands on the rope, which necessitated his leaning forward a little. He further says: “ When I got the elevator up Mi's. Trimmer did not call out that it was high enough ; she tóld me to send it up higher. Q. * * * When you sent it up higher did she tell you to stop ? A. I heard nothing at all; as soon as I pulled it up I got struck by the dumb waiter. * * * You would have to go in under it (the dumb waiter) when you call to a customer; * * * in order to get the elevator up at the proper height it was necessary for me to look in there; she (the tenant) is the one who told me it was up the proper height; I could tell it was the proper height when she had the door opened; if she did not open the door and I could not see her, I could not have told; I could not have told if I had looked up; had to depend upon her being there or else her calling down; I did not look up to see if she took the can of milk off or not; I was looking at some woodwork down below and was not paying any attention to seeing what she was doing upstairs; I did not know when the dumb waiter came down except as it struck me.” There was a question upon this testimony whether the plaintiff, at the time the dumb waiter fell, had just been advised by the tenant that it was high enough, and it struck him before he had time to withdraw from the shaft, or whether he hesitated a little after he had been so advised, and cast his eyes down below and was hurt while he was so doing. Either view might have been taken by the jury; and upon this appeal we are bound to assume.that they would have taken that view of it which was most favorable to the plaintiff upon *242the evidence, and that is that he had just finished placing the dumb waiter at the floor where it was intended to go and that it fell while he was still practically in the act ó'f doing so. That being só, we agree with the learned trial judge that the question of contributory negligence was for the jury. But as we disagree with him upon the question of. negligence and think that, contrary to his ruling, .there was a question for the jury as to the. negligence of the defendant, we feel bound to reverse this judgment. ■ :
It appears from the- case that the plaintiff, after the trial, entered an order denying his motion for leave to go to. the jury, and an appeal is also taken from that , order. The entry of such an order as that was not necessary. A motion for leave to go to' the jury in a case is one of the proceedings in the trial. The correctness of' a ruling upon it is sufficiently raised by an exception,' and what .was-done in that regard must always be made'to appear by the case and exceptions. Here it does, not appear by "the case and exceptions that any leave was asked' by the plaintiff to go to the jury, or that any ruling was made by the court upon that' subject. If the plaintiff’s right to review this judgment depended upon the denial of Ms application for leave to go to the jury, which was not made during the trial of the case, but was made afterwards, if at all, and was ■not excepted to, but. was appealed from, hé would have no standing in' this court. The question for review here is presented by the exception to-the granting of a motion'for a nonsuit and not otherwise. The appeal from the order denying the motion for leave to go to the jury must, therefore, be dismissed:
The. judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., Williams, Ingraham- and Parker, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to' abide event.