The 'defendant in this case was not personally negligent, the evidence showing that he had furnished a proper system of lighting and established rules, which, if followed, would have kept the passageways sufficiently lighted to have enabled his employees to go out safely. There is no evidence that the defendant knew that it was the custom of certain of his employees to turn out these lights before the others had gone safely through the hallway and out of the building, and I fail to find any good ground for holding him liable. The negligence based upon the extinguishment of the lights was clearly that of fellow-servants for which the defendant is not liable. (Hall v. United States Radiator Co., 52 App. Div. 90.)
Nor do I think the presence of the “wheelers ” filled .'with rubbish in the passageway was of itself either dangerous or negligent. That appeared to be a necessary and reasonable way of conducting the defendant’s business. But even if it could be held that the place was unsuited to such use, there is nothing to show that the defendant directed them to be placed there, or directed the loading of the “ wheelers ” with the sweepings and rubbish.. This was done by persons who likewise were co-employees with the plaintiff; *23bo that upon this branch of the case also I think the negligence, if any, was that of a co-servant.
Upon this appeal the testimony seems to be fuller in showing the conditions under which the lights were extinguished and the reason for the presence of the “ wheelers ” in the passageway; and hence I do not' think the decision on the former appeal (49 App. Div. 8) is absolutely binding or conclusive. As my conclusion, therefore, is that there was no sufficient proof of the defendant’s negligence, but that the negligence, if any, was that of co-employees, I think- that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Bümset, J., concurred.
Judgment and order affirmed, with costs.