The cause of action asserted by the plaintiff is entirely fanciful. Plaintiff’s intestate was a plumber, and had been employed by the defendant for several months in doing work upon the latter’s premises, situated upon Park avenue, between Seventy-sixth and Seventy-seventh streets, in the borough of Manhattan. • On the 9tli day of December, 1903, at about five o’clock in the afternoon of a dark, drizzly day, plaintiff’s intestate, in company with his helper, quit work and started to leave the premises. The principal entrance to the defendant’s hospital is on the Seventy-seventh street side, this entrance, so far as appears, always being open and known to the deceased. On the Park avenue side of the "premises the *50street is some five or six feet higher than the hospital grounds, and a picket fence surmounts a. retaining wall built along the. defendant’s premises. At a certain point in this picket, fence, the defendant had constructed, a gateway leading to an apparatus designed, for lifting ashes from the area Way to the street. This apparatus, consisted- of an elevator or lift operated in a brick well so constructed that when the elevator was at the bottom of the well the top of the same was covered by a roof,, which raised with the raising of the lift, so that it would be some six feet, or more above .the top of the well' when the lift was on a level with the' street, the top of the well being at .the street level, or near it. By thé side of this brick well there wás a rude ladder which had stood there, for some considerable time, though for what purpose,, if there was any definite/ purpose, does not appear. The plaintiff, with his helper, mounted this ladder, cliinbed to the top, stepped out' as- he supposed to the top of this brick well, and- fell into the same, sustaining' inj uries. resulting in his death. The plaintiff’s theox-y is that the defendant was negligent in not giving the '.intestate notice of the' fact that the lift was being used for the purpose for which it was .designed. There is no suggestion that the lift was not properly constructed ; the undisputed evidence is to the effect that the well hole had been open only about twenty minutes, while the defendant’s employees were removing ashes from the’ lower level to the street, in a manner entirely justified by the ordinary conduct of the work. " Ño one in authority had ever authorized or directed the plaintiff’s intestate to make use of this gateway ; the defendant maintained a proper means of egress- from its premises,, and to hold that under such circumstances the defendant owed the deceased any active duty would be to make it an insurer against the carelessness of - those whom it employed upon its premises.
Plaintiff cites the line of cases which hold persons liable where they have held out implied invitations to others to come upon -the premises, and where injuries result from negligence in the care of such premises; but to construe a rude ladder resting against a wall in proximity to the elevator well in this- areaway into an invitation to the plaintiff’s intestate to make use of this obviously dangerous way out Of the premises, is carrying the doctrine beyorid any of the adjudicated cases, and beyond, the demands'of justice. .
*51Hot only did the defendant not owe the deceased any active duty under the facts disclosed, but the evidence fails to show a lack' of contributory negligence on the part of the deceased. He was a mechanic; he was familiar with the place, knew the purpose of the gateway and the manner of operating the elevator; yet the evidence shows that upon a dark night he climbed up this ladder and stepped out over this elevator well, without taking any measures to determine. whether the cap was in place or not, and the only" excuse attempted to be offered for this conduct on his part is that during the time that he had been at work there he had not known of the elevator being used at five o’clock, his quitting time. There is nothing to show that there was any regular time for using the elevator; its purpose was to permit of the removing of ashes; it was obviously proper to make use of this appliance whenever it became necessary to remove ashes ; and if the deceased saw fit to make use of a ladder to climb up to the street level, a method not usual in such places, he did so at his own risk, and he was bound to show'Some degree of care before he could recover, even if the defendant had owed him the duty of using reasonable eare.
The judgment appealed from should he affirmed, with costs.
Hirschberg, P. J., and Gaynor, J., concurred; Hooker, J., dissented.
Judgment affirmed, with, costs.