We think this judgment cannot be sustained for'the simple reason that at the time the decedent was killed he was not exercising due care and diligence. On the contrary, the evidence clearly shows that in violation of repeated instructions to him, he jumped *33on the elevator while it was in motion and gave no signal for it to stop, which he could readily have done after getting on it, and thus by his own Want of care the accident was caused. He was fully informed as to the manner of giving the signals by means of the cord attached to the bell, and for an hour before the accident lié alone had given them.
There was no evidence in the case tending to show that it was necessary for the decedent in performing his. work to get on the elevator while" it was in'motion. The jury were instructed by .the court that if they found that he was instructed not to get on the elevator while it was in motion, and he violated that instruction, there could be no recovery and their verdict must be for the defendant.
The court was evidently of the impression that- on this branch of the case there was a question for the jury, but we fail to find any conflict in the evidence. Several disinterested witnesses testify that Tootell was instructed to keep off the elevator while it was in motion and there was also a notice posted to all the employees to that effect, and there was no evidence to the contrary.' Ifc is manifest that if these instructions had been followed and Tootell had waited for the elevator to stop before getting on it to remove the barrow of brick, he would not have been injured. Upon the evidencé he was guilty of contributory negligence as a matter of law and the complaint should have been dismissed.
The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred, Kellogg, J., in memorandum; Sewell, J., not sitting.