The plaintiff brings this action as administratrix to recover damages for the death of Bernard Gray, who fell from the fourth story to the bottom of an elevator shaft on defendant’s premises and was instantly killed on the morning of July 23,1901. The defendant is a domestic corporation and has the entire management and control of a department store on the east side of Sixth avenue between Eighteenth and nineteenth streets in the city of Hew York. It maintained an elevator in the southeast corner of these premises with a door opening on the ground floor on the east side of the shaft facing the place referred to as the receiving room, while on the other floors of the building the openings were on the opposite or west side of the shaft and faced the interior of the store. The platform of the elevator was of wood, brown in color, with an iron sill on its easterly edge, and its dimensions were ten feet five inches in length from north to south and nine feet eight inches from east to west. The north and south sides of the car were closed, the east and west sides were entirely open and without guards or chain's of any sort. When at the ground floor or easterly entrance to the elevator the platform was within about an inch of the easterly side of the shaft, but the thickness of the rear wall of the building which constitutes the east wall of the shaft diminished as it went upward, causing a gradual recession of the wall from the line of travel of the elevator, leaving an open unguarded space of about ten and one-lialf inches between this wall and the easterly edge of the platform when at the fourth floor. There was a sign on each floor over the door of the elevator, “ For freight only.”
Gray was engaged in delivering a load of dressed lambs from his *124employers, Schwarzchild & Sulzberger, by their direction to the defendant. It appears that this was the first time that he, Gray, had ever delivered meat to the defendant, and that on this occasion he first went up to the fourth floor, leaving the meat on the wagon outside, and went to the butcher box there and came down to the ground floor. Then the elevator man was called up to the fourth floor by a ring from that floor and brought down two butchers who loaded the meat on the elevator while Gray handed it to them from the wagon. Then all three rode up in the elevator with the elevator man to within five inches of the fourth floor, where the platform of the elevator was stopped in order that the racks on which the meat was hung by means of hooks-—-the rack being in the form of a double II, parallel with the floor of the car and' distant therefrom about seven feet — might be on a level with an overhead track along which the meat was pushed or shoved to the place desired on the fourth floor. The distance from the rear or easterly end of these U-shaped racks to the easterly edge of the platform is one foot nine inches. It appears that while the decedent was assisting the butchers in unloading the meat at this floor he stepped back in this space, passing to the rear of a butcher who was similarly engaged, and fell through the aperture before described. One of the employees of the defendant testified that he saw the palms of the hands of decedent as he disappeared, and another employee of defendant saw his hands clutching at the sill.
The evidence indicates that it was not the custom of others who made deliveries to the defendant to ride up in the elevator with the goods; but that the men who delivered for Schwarzchild & Sulzberger always did without objection and obtained the weight of the meat at the fourth floor after thus accompanying it up and assisting in unloading it from the elevator, and it is expressly admitted by the pleading that the elevator had for a long time been “ used by persons having business with the defendant, such as the delivery of merchandise, stock, etc., to said defendant.”
The shaft was lighted by means of a large skylight on the top of the seventh floor; and the elevator had no screen on its top, simply the frame of the elevator, but there is a conflict in the evidence as to how light the elevator was, and a further conflict in the evidence as to the condition of the floor and the color of the wall of the *125shaft at the time of the accident. A policeman called by the plaintiff testified that he examined the floor of the car about fifteen minutes after finding the body of Gray at the foot of the shaft on this morning and found it slippery and greasy; that the color of the wall was dull, and that, although the sun was shining outside, the light in the shaft was dull and the back of the elevator when at the fourth floor was dark even when the door was open. The testimony of some of the employees of the defendant indicates that the shaft was well lighted by means of the skylight above ; that this increased when the doors were open at the fourth floor; that the rear wall was white, and that the platform of the car was dry and they never put meat on it. There was a large window on the fourth floor about twenty-six feet distant from the elevator door, but this was partially obscured by an office and a shade.
At the close of the plaintiff’s case the defendant moved for a nonsuit on the ground that no negligence on its part was shown and that decedent was not free from contributory negligence and that the plaintiff had failed to prove a cause of action. It renewed the motion at the close of all the evidence and excepted to the denials of these motions.
It is claimed by the appellant that it was error to submit the case to the jury, and also that the verdict of the jury on the question of the freedom of decedent from contributory negligence and on the question of defendant’s negligence is against the weight of the evidence. We think the case was properly submitted to the jury, and that the verdict is fairly sustained by the evidence. The decedent was not a trespasser nor a mere licensee. There was evidence tending to show that he was there discharging the business of his employers with the defendant, and engaged in the usual course of that business by the implied invitation of the defendant. The court properly submitted that question to the jury under instructions in effect that if they found that decedent was a mere volunteer and not there in the regular course of his employment the defendant was not liable. The decedent’s conduct must be judged by the facts disclosed. This was his first delivery at the defendant’s place of business. He followed the previous custom of the other employees of Schwarzchild & Sulzberger, and the inference is that he acquired knowledge in some manner of their method of delivery. He first reported directly to the butcher box where this meat was *126destined to be placed; and, in response, the butchers came down and loaded the meat onto the elevator as he handed it to them from the wagon. He then accompanied them in the elevator to the fourth floor, presumably for the purpose of ascertaining the weight of the meat upon its being weighed after delivery upon the fourth floor. It was his duty to deliver the meat and also evidently to ascertain the weight allowed by the defendant. It cannot be said as matter of law that the delivery was complete until it was unloaded on the fourth floor, where it was to be weighed. It was his duty to deliver, and he having been allowed to participate in the delivery on the fourth floor, it was the duty of the defendant to see that he sustained no injury through its negligence. (Weight v. Northwestern R. Co., L. R. 1 Q. B. Div. 252.) There is no evidence that he was aware of the sign above the elevator, and, if there were, his riding in the elevator was not the cause of his death. He did not fall while riding in the elevator, but only after it had stopped and while engaged in assisting in unloading the meat, as he might have done had he walked up or ridden in another elevator. There is no direct evidence that he knew of the opening between the easterly side of the platform and the easterly wall when the elevator arrived at the fourth floor. The evidence that the palms of his hands were toward the elevator door as he dropped, and that he clutched at the sill, indicates that he stepped backward into this opening. The jury were justified in finding that the light was such that the opening was not open and obvious to one in his position and possessed of his limited knowledge of the surroundings. It could not be said as matter of law that he was negligent. On the contrary, the finding of the jury that he was free from negligence was fairly justified. The negligence of the defendant, we think, was clearly established. There was evidence that the elevator was not well lighted, and with this wide unguarded opening it became a trap into which any employee assisting in unloading the meat, in the absence of knowledge of the situation, or not having the same constantly in mind, was liable to step and lose his life. No other question is presented for our consideration.
The judgment and order should be affirmed, with costs.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.