. This action was' commenced by the administrator of Carl Burk to recover the damages sustained by his next of kin by his death. The defendant was engaged in supplying certain machinery to the brewery of George Bingler & Co., in the city of New York, in which brewery the plaintiff’s intestate was a ' workman. It is claimed that, while the defendant was engaged- in' moving some machinery by the elevator in the brewery, through the negligence or carelessness of some of its servants ¡or employees, a roller used to move the machinery was allowed to fall down an elevator shaft and strike the plaintiff’s intestate upon the head as he was passing through the shaft, causing his death. Upon the trial, the court dismissed the complaint upon the ground that the plaintiff failed to maintain the burden of proving that the deceased -came to harm without negligence upon his part, and judgment was entered upon such dismissal, from which the plaintiff appealed. The case was. once before tried, when the plaintiff obtained a verdict, but on appeal the judgment entered upon that verdict was reversed upon the ground that the plaintiff’s intestate by his negligence contributed to the injury. (See Burk v. Edison General Electric Company, 89 Hun, 499.) With the excejffion of one fact testified to, and which will be alluded to, the evidence was the same as upon the former trial. Upon the former appeal it was held that the action of the plaintiff’s intestate in passing through this elevator shaft, instead of taking the passage outside of the shaft provided by the proprietor of the *435brewery for the use of its employees, was obviously dangerous, and that the person thus using this elevator shaft took upon himself the risk of the happening of an accident like the one which resulted in the death of the plaintiff’s intestate, for which no cause of action existed against the person who was responsible for the act which resulted in the injury. While I agree that we are not bound by the decision of the General Term upon the former appeal as the law of this case, I think we should follow it, unless it appears that it was based upon an obvious misconception of the facts, or was clearly erroneous. The defendant was engaged in using an elevator upon the brewery premises, performing certain work for the brewery.. This elevator was used f.or the transportation of articles of merchandise from one floor of the brewery to another. The elevator shaft ended in the cellar of the building, and the elevator was so constructed that there' was sufficient space between it and the side of the shaft to allow articles to fall from the elevator down the shaft. The plaintiff’s intestate was an employee of the proprietors of the brewery and was at work in the cellar, in connection with the brewery business. He left his place of Work for the purpose of getting some beer, and in going to the place where the beer was kept, he passed, not through the elevator shaft, but through the passageway provided by the proprietors of the brewery for the use of their employees. In returning, however, to his work, instead of using this passage for that purpose, which was perfectly safe, he concluded- to pass through this elevator shaft. The only excuse given for using the elevator shaft was that it saved -a few feet in the distance from the place where the beer was and the place where the plaintiff’s intestate and his associates were at work. There was a rule of the brewery that this passage through the elevator shaft should not be used, it having been built, not for the purpose of use as a passage, but for the purpose of introducing a hose connected with the brewery business, though it does not affirmatively appear that the deceased had notice of this rule.
Now this passage through the elevator shaft was one of obvious danger. The elevator was constructed for the purpose of transporting merchandise from one floor to another in such a way that there was. a space between the elevator and the side of the shaft which allowed articles to fall from the elevator down the shaft. It was in *436use at the time, and, as the plaintiff’s intestate was employed in the building, be must be assumed at least to have had knowledge of the situation and the use to which this elevator was put. His associates,, however, had knowledge of the rule- hot to use the shaft, and the evidence shows that when it was violated by the employees of the brewery it was when the foreman and those. charged with the conduct of the brewery were not present. As before stated, the use of this shaft as a way of passage was obviously dangerous. It did not require any special knowledge for a workman in the brewery to-understand that articles were liable to fall from this elevator or that it was possible for the elevator itself to come down and injure one standing under it. It is not shown that the defendant had any knowledge of the fact that this passageway existed, that it was ever-used by any one, or that there would be any injury as the result of' a piece of their machinery failing down the elevator shaft, other than that the piece of machinery would have to be raised from the-bottom of the shaft. The plaintiff’s: intestate, however, was working in the building, and must have had. knowledge -of the danger incident to the use of this elevator shaft. He knew that another passageway was provided for the use of those employed in the=. brewery, and he had taken that passage where he.was safe but a few moments before. He then voluntarily -exposed himself in a dangerous situation without necessity, without in any way giving notice to-those engaged in using the elevator, and only to- save himself the-, necessity of walking a short distance. It .seems to. me quite clear that, under these circumstances, the decision of the General Term upon the former appeal was right; that by voluntarily placing himself in this position of danger the plaintiff’s intestate assumed the. risks, incident-to the situation in which he placed himself, and that-any injury he-sustained was the result of his own carelessness.
It must, I think, be conceded that; if the plaintiff’s intestate, in. placing himself in this position -of danger, had been injured by the: elevator suddenly descending, where no notice- had been given to-those operating the elevator that he was in this elevator shaft,, there-would be no liability on the part of those operating the elevator or responsible for its management, It' must also, I think, follow' that if those in charge of the elevator had allowed some article .to-drop from the elevator and injure the plaintiff’s intestate, the result: *437would be the same. The injury would result from the plaintiff’s intestate voluntarily placing himself in this elevator shaft in violation of the rules of the brewery. But in what respect was this defendant to. incur any greater liability than would the proprie-' tor of the brewery if he had been using the elevator at the time? There is not the slightest evidence to show that the defendant, or its employees, had any knowledge of the existence of this passage, or that any one ever used the elevator shaft for any purpose; except that of operating the elevator.
The notice which was given to the defendant’s foreman, that a part of the machinery was liable to fall down the shaft, was not a notice that the result of such a mishap would injure the plaintiff’s intestate, or any one else. Before the defendant’s foreman placed the machinery upon the elevator, he was advised by the chief engineer of the brewery to put hoards down upon the floor of the elevator, and to haul the machine up to the floor on the elevator, to which the foreman replied that that was his (the foreman’s) business. The engineer then called his attention to the space between the edge of the elevator and the sill .'of the door, aird told the defendant’s foreman, “ this. roller will fall down; the roller is smaller than the space.” The defendant’s employees then continued to roll the machinery, and, when it arrived about three inches from the elevator shaft, the engineer of the brewery saw a light down stairs in the elevator shaft, and called out, “ Look out! There is a machine hoisting up.” The engineer then said to the defendant’s foreman, “ Look out for your rollers ! Your rollers will fall down.” They then rolled the machine inside the elevator and the roller fell down. There is here no evidence that there was any notification to the defendant, or its employees, that there was anybody in the bottom of the shaft. As the machinery was just about to be placed upon the elevator, the engineer gave a notice to look out; .that the machinery was being hoisted up, thus giving notice of danger to any one in the vicinity, but this notice was not a notice that any one was in the shaft.' The defendant’s employees, in using this elevator as. they did, were certainly under no greater obligation to the employees of the brewery than their master was; and I think it must be conceded that, if the master had been employed in using this elevator at the time, he would not have been responsible.
*438But the question is not as to the negligence of the defendant, but .as to the contributory negligence of the plaintiff’s intestate. It was certainly as dangerous a situation, when the elevator was being used by the people engaged in the business of the brewery, as when it was used by the defendant in doing work under a contract in the brewery. Assume that the defendant was gnilty of negligence — gross negligence, if you will—:to entitle the plaintiff to" recover, the burden is upon him to show that the deceased was without negligence that contributed to the injury ; and when it apears from the plaintiff’s own testimony that the deceased voluntarily placed himself at the bottom of this elevator shaft, when the elevator was in use, having to crawl through "a hole provided, not as- a passageway, but to conduct a hose from one cellar to the other, and when it was-understood by the employees that, for their own security, it was not the usual way to go through, it would seem to me clear that the evidence did not show the absence of contributory negligence on the part" of the plaintiff’s intestate, but that it affirmatively appeared that the injury was caused by his negligence in unnecessarily placing himself in a position of danger, the risk of which was voluntarily assumed by him. .
The rule that .a person non sui juris, "who could not be expected to understand the risks incident to a dangerous locality, was not chargeable with such knowledge and did not take upon himself the risks incident to a dangerous position voluntarily assumed, cannot be applied in the case of a workman in full possession of his faculties, employed in a building in which the dangerous situation existed, which" was as apparent to one person as another, and where he places himself in such a dangerous situation, voluntarily, without any necessity imposéd upon him by the performance of the work upon which he was engaged, and in violation of the rules of his employer. The danger of a piece of machinery falling down this elevator shaft was as apparent to any workman, so long as lie had possession of Ms senses, as it was to the most skilled employee; and for a man with such knowledge voluntarily to place himself in a position of danger underneath . an ■ elevator used in moving heavy articles of merchandise, where no necessity exists, cannot be. said to- be an act of prudence, or one that places upon a person using the elevator-a liability for an accident that happens in consequence of such voluntary *439act of the person injured. We think, therefore, that the decision of the General Term upon the facts before it was clearly right.
The only evidence adduced upon this trial, not before the court on • the former trial, was that the plaintiff’s intestate, before he entered! this elevator shaft, or just after he entered it, looked up, and then proceeded on his way under the elevator, across the shaft; but the-negligence attributed to him, or i-other the fact that he assumed any risk incident to the use of this elevator by voluntarily using the elevator shaft as a way of passage, did not depend upon his looking or not looking before he entered the shaft. It was. his using it at all, for the purpose which he did, that precludes a recovery. It was negligence for him to. use it without looking, and it was none the less negligence to use it after having looked. The time that it would take a heavy article to fall from the position that this elevator was in — and if the plaintiff’s intestate had looked he must- have seen where the elevator was — would be so short that the danger would not be from an article that was falling before and at the moment when he entered the shaft. At the time this piece of machinery fell the defendant’s men were engaged in rolling it from the yard of the brewery into the elevator. The cellar was below, where the plaintiff’s intestate was at work washing out barrels. Any heavy piece of machinery falling from this elevator would strike a person using the elevator shaft long before he could see it and get out of the way, even if .looking at the time it fell. It was the use of the elevator shaft at all for the purpose of passage, while the elevator was in use, that was dangerous; and, as the plaintiff’s intestate voluntarily put himself in the position of danger, he must be held to have voluntarily assumed the risk which was an incident of being in the position in which he so voluntarily placed himself.
I think the judgment below was right and it should be affirmed, with costs.
Van Brunt, P. J., and O’Brien, J., concurred; Barrett and -Rumsnr, JJ., dissented.