(dissenting):
The plaintiff’s intestate, Oarl Burk, was an employee in the brewery of George Ringler & Co. On September 27, 1892, the defend- ' ant was engaged in installing an electric light plant in the building. *440While its employees were loading a piece of machinery upon the elevator at the tirst floor they allowed a heavy roller, which was being used in the work, to fall through a space of about four o;r five inches between the elevator and the landing. This roller struck and killed Burk, who was passing through the elevator -shaft in the cellar. It was shown that the chief engineer of the brewery warned the defendant’s foreman, Oakley, about this space; told him that the roller might fall down ; advised the placing of boards between the elevator and the landing; and, seeing a light somewhere below, called down that a piece of machinery was being hoisted. In the face of all this, Oakley rejected the advice, with the result stated. Burk, in company with another workman, Wiedemann, was using the shaft as a passageway between the east and west divisions of the cellar, which' were separated by a wall. They both looked up before attempting to pass through ; saw that the elevator was at the first floor and stationary; and thought that they were safe: Wiedemann got through without injury, but Burk, a few feet behind, was struck down by the roller. It appeared that employees were warned against using, the shaft, but that there was no printed or posted rule forbidding it.
On a former appeal by the defendant a judgment for the plaintiff was reversed by the late General Term for this department on the ground that the deceased was guilty of contributory negligence: (Burk v. Edison General Electric Company, 89 Hun, 498, 500.) The gist of the decision is contained in the following sentence: “ If one, without need or cause, puts himself .in a position of apparent danger, and while in that position suffers an injury resulting in death, it cannot be maintained that he has not contributed to such injury.” If this view is binding upon the plaintiff, it is quite clear that, there can be no recovery. With the exception of the evidence that Burk looked up before attempting to pass through the shaft, the proof is the same now as then. If he should have foreseen a danger such as this, and was negligent in encountering it, then his action in looking up cannot aid him, since this, precaution would not have enabled him, as in fact it did not, to avoid being struck by a heavy object falling so short a distance.
It is thus necessary to determine, at the outset, whether the General Term decision must be. deemed controlling. It seems plain that. *441it should not. The order of reversal was entered in October, 1895. At that time an appeal to the Court of Appeals from a judgment of the General Term in an action for personal injuries was a matter of right. By an amendment to the Code made in 1896 (Laws of 1896, chap. 559) no appeal is permitted from a unanimous judgment of affirmance by the Appellate Division in such a case without a certificate allowing it. (§ 191, subd. 2.) Consequently the Appellate Division and the late General Term cannot, for the purposes of this appeal, be treated as courts of co-equal jurisdiction. The rule that a prior decision will not be reconsidered in the same action is applicable not only where the case comes up for the second time before the same court, but also where the prior decision was made by a court exercising the same powers and jurisdiction. Thus it has been applied as between the Commission of Appeals and the Court of Appeals, and the First and Second Divisions of that court. (Terry v. Wait, 56 N. Y. 91; Cluff v. Day, 141 id. 580.) It has never, so far as we know, been applied where the second court exercised a greater power than the first. The decision of the second court being final, while that of the first was not, the second is, to all intents and purposes, a court of review. If the judgment here should be .affirmed simply on the strength of the General Term ruling, the plaintiff might have a final judgment against him rendered, practically, by a court not possessing final jurisdiction. "The fact that the judgment of this court is not necessarily final, since the decision might not be unanimous, or a certificate of appeal might be allowed, ■should not alter the result. When the appeal is heard these matters are in doubt, and the possibility of a final judgment is enough to •entitle the plaintiff to a full rehearing on the merits. A prior decision of the General Term, so far as applicable, was held to be the law of the case in Fennessy v. Ross (5 App. Div. 342); but there a demurrer was under consideration, and the judgment of the General Term in such a case was appealable only by permission, the same as a judgment of the Appellate Division now. (Johnson v. U. S. & S. Co. 125 N. Y. 720.)
The ground previously taken for reversal, and that now principally urged for affirmance, is the contributory negligence of the ■deceased. Counsel for the defendant contend, in substance, that he *442voluntarily placed himself in a position of danger, without necessity,, and that this bars a recovery. It must be granted, at the outset,, that the attendant circumstances furnished Burk with no adequate-excuse for putting himself in a position, of peril. He was taking a short cut from the east to the west section of the cellar. He might have utilized a hole in the. wall not far from the elevator, or he might, have gone to a door some thirty-six feet away. In either-case he would, so far as appears, have been perfectly safe. The slight additional time and trouble involved in either of these courses was no excuse for taking a deliberate risk. But the question remains — did he take a deliberate risk ? It has been reiterated many times, and with much emphasis, that the elevator shaft was a . place of obvious danger. In a sense that is true. Any one passing-through ran a risk,.ordinarily, of being struck by the descending elevator, or by articles which might fall down the shaft from the various landings of the building. These risks may fairly be-said to have been incident to the situation, and if Burk’s injury had been due to one of these causes it seems quite plain that- the plaintiff could not recover. Burk was, however, not injured in any such manner. On the contrary, he took pains to see that he could not. b,e thus injured. He looked and found that the elevator was at the-first floor landing and stationary. The respondent concedes and the-drawings show that it was over thirty .feet above him. It was a fair-inference that it could not descend in time to strike him. Then, too, this situation of the elevator prevented the deceased from being-struck by objects above the first landing, and there was no spot below it from which any article could fall. It is true, as we have-suggested, that the deceased took all the risks flowing from ■ the ordinary course of the brewery business. But he took no such risks from extraneous and abnormal incidents. As to the unusual circumstances existing at the time, there is nothing to indicate that Burk had the slightest knowledge .of them.
• And this leads us to the point upon which we think the defendant’s-counsel are in error. A place may be a place of danger at some time and not at others. There are few places of which this is not true. The vicinity of a lot upon which blasting is being done is-extremely dangerous at times, but it will hardly be" contended that ■ a pedestrian, from the mere fact of passing it instead of going up *443a by-street, forfeits all right to recover for injuries caused by a negligent blast. In the sense in which the term has been used, a railroad crossing is a jdace of danger, for the greatest risks may often be run there. But is there to be no recovery for the negligence, for instance, of a gateman stationed at a crossing, simply because the driver of an injured véhicle might have utilized a neighboring bridge over the track and passed over it in unquestioned security ? It may be said that these illustrations differ from the present case," and they do. A citizen has undoubtedly a greater right upon a public street or roadway than the deceased had in the elevator shaft, since the streets are meant for the public use, while the shaft was being put to a use for which it was not intended. This consideration is entitled to great weight upon the question of the defendant’s negligence, and will be there considered; but it merely leads to confusion in connection with the question of the deceased’s contributory negligence.
A careful examination of the case cited for the defendant, and many others, strengthens our belief that wherever a plaintiff has been guilty of contributory negligence, the ultimate cause of the injury was apparent and threatening when he took the disastrous step or omitted the reasonable precaution, or that he was subsequently guilty of further negligent conduct which aided in causing the mishap. (See Coleman v. Second Ave. R. R. Co., 114 N. Y. 609; Whalen v. Citizens' Gas Light Co., 151 id. 70; Weston v. City of Troy, 139 id. 281; Brennan v. The Mayor, 51 N. Y. St. Repr. 617; Knox v. Hall Steam P-ower Co., 23 N. Y. Supp. 490; Kuhnen v. Union Ry. Co., 10 App. Div. 195; Clark v. Eighth Ave. R. R. Co., 36 N. Y. 135, 136.) It seems a necessity that this should be so when it is considered in what negligence consists. It may be defined with reasonable accuracy as the incurring of a danger, either by act or omission, with knowledge thereof, or sufficient means of knowledge, and without legal excuse. The only risk which the deceased ran was the fall of the roller, and this was as to. him a hidden risk; in other words, a risk of which he had neither knowledge nor means of knowledge. He discovered by examination that the dangers ordinarily incident to the situation did not then exist. Hence, the situation was one of apparent safety — quite as much so as though danger never attended it. He looked for danger, and to *444all appearance there was none. To hold that, because one goes to a place which is perilous at times, he assumes the risk of injury from every cause, open or hidden, reasonably to be expected or impossible to foresee, would be to lay down a doctrine which would make the injured party practically an outlaw,. And this for no adequate fault — indeed, for no fault at all. The' most that can be said regarding one like Burk is that he did not exercise the .highest degree of care — did not take .every possible step to avoid injury. But that is not required. There may be a recovery if he fell short of this standard, but exercised reasonable care in view of all the circumstances. (Ernst v. Hudson R. R. Co., 35 N. Y. 9; Fero v. B. & S. L. R. R. Co., 22 id. 209.) That question is ordinarily for the jury, and cannot be taken away from them here.
It should be added that this result is not .changed by the alleged rule of the brewery regarding the use of the elevator shaft. That amounted to nothing more than a warning to the employees against the very dangers which, without such a warning, they would have been bound to avoid, namely, the dangers incident to the ordinary course of the brewery business.
The remaining question is whether the defendant was guilty of negligence with regard to the deceased. It must be conceded that the presence of the deceased in the shaft was not to be anticipated, and that the defendant’s servants were not bound to regulate their conduct upon the assumption that some of the employees of the brewery might go there. In other words, the defendant’s employees were under no duty of active vigilance to ascertain whether some employees of the brewery might possibly be below. Even if the defendant’s servants, with knowledge of the fact that the employees of the brewery occasionally used the shaft, had placed the roller in the elevator, and some cause had started it rolling so that it fell down the shaft, during their temporary absence, with resultant injury, we think that no recovery could- be had. That would merely be a failure to exercise active vigilance. It is well settled, however, that one is liable for negligent acts constituting the sole proximate cause of injury to another, although that other got into the place where he was injured through Ms own carelessness,, or had'no affirmative right to be there. (Austin v. N. J. Steamboat Co., 43 N. Y. 75; Barry v. N. Y. C. & H. R. R. R. Co., 92 id. 289; remarks of *445Earl, Ch. J., in Nicholson v. Erie Ry. Co., 41 id. 538, 539; S. & R. Neg. § 99.) The deceased here was not a trespasser. If he was warned against the shaft it was only because of the danger which existed there at times. He was notified in effect that, if he went there, he assumed the risks incident to the situation. The active negligence of his employers was not one of these risks. Knowing him to be there, they were bound to use reasonable care to refrain from injuring him, and they could not escape such duty by even a positive injunction against his going there. The defendant stands in no better position than the employers of the deceased. ■
Turning to the- evidence, we find that it justifies an inference - of direct negligent acts committed against the deceased, with knowledge or notice that he was in the shaft. The defendant’s foreman, Oakley, could not have failed to understand the situation from-what the engineer of the brewery, Hoenig, said and did. Hoenig had already pointed out to Oakley the dangerous interstice, and had warned him of the hazard attendant upon his mode of action. Not only that, but, seeing a light downstairs in the elevator shaft, Hoenig actually “ hallooed ” down, “ Look out. There is a machine hoisting up.” Oakley may have seen the light as well as Hoenig. He certainly saw Hoenig looking down and heard him shout out what was apparently a warning to someone below. Immediately after so shouting, Hoenig again turned to Oakley and repeated his former warning, “ Look out for your rollers. Your rollers will fall down.” The jury might fairly- have paraphased all this as equivalent to Hoenig’s saying to Oakley : “ There is probably someone below. Yon have heard me shouting a warning to whoever it may be. Look out that your rollers do not fall down and injure that person.” Thus, if Oakley did not have direct knowledge that Burk was underneath, at least it might have been found that he continued on his reckless course in the face of - circumstances sufficient to put him upon inquiry, and deliberately took the chance of injuring the deceased in case it turned out that he was there. If such inferences had been drawn by the jury (and they were permissible), the plaintiff was entitled to recover.
It should be added that the warning shouted down the shaft was not heard by Wiedemann, Burk’s companion, and presumably not by Burk himself. If otherwise, it would still be a question of fact *446whether this warning adequately conveyed to them, notice of the danger-which actually threatened.
The judgment should be reversed and a new trial ordered, with ■costs to the appellant to abide the event.
Rumsey, J., concurred.
Judgment affirmed, with costs.