I do not think that the evidence justified a finding that the defendant was negligent or the plaintiff free from contributory negligence. The elevator boy was in charge of the elevator, came down with it, and it was then standing waiting for those wishing to *771use it. He stood a short distance in front of the elevator door and certainly could not anticipate that any one would get in behind him and take the elevator to an upper story without notice to him or without shutting the elevator door.' He turned to answer an inquiry as to a tenant in the building, and while thus engaged a person for whose acts the defendant was not responsible, without authority from the defendant or his employees, took the elevator to an upper story without shutting the door. Immediately thereafter the plaintiff also walked behind the elevator boy and walked through the elevator door without looking to see whether the elevator was there. If the elevator boy was negligent in not anticipating that some one could get behind him and remove the elevator, the plaintiff was guilty of negligence in walking through this elevator door without making any examination or looking to see if the elevator was there. The plaintiff was a tenant in the building and in the constant habit of using the elevator; knew that this elevator boy was in charge of the elevator, and that the elevator boy was then engaged in answering this inquiry. I do not think the elevator boy was negligent in allowing his attention to be distracted for a moment to answer a question in respect to a tenant in the building, or responsible for the fact that the elevator was removed without his knowledge; but if he was negligent it seems to me that the plaintiff was clearly guilty of contributory negligence.
The cases relied on in the prevailing opinion seem to me clearly distinguishable. In Tousey v. Roberts (114 N. Y. 314) it was dark in the hallway and there was no artificial light, and the liability of the defendant was based upon the fact that the jury were justified in inferring that the hallway and the elevator should have been lighted. In Wilcox v. City of Rochester (190 N. Y. 137) the elevatorman opened the elevator door and then walked away from the elevator, leaving it unguarded, when another employee of the owner, for whose acts the defendant was responsible, removed the elevator without closing the door. Here the boy in charge of the elevator was at his post close to the elevator door; there was plenty of light to see the elevator, and if the plaintiff had looked or taken the slightest precaution he would have discovered the fact that there was no elevator there.
I think, therefore, the judgment should be reversed.