The defendant conducts a warehouse, and a firm known as Lilienthal Bi’others had a quantity of hops stored in this warehouse. Plaintiff was employed by Lilienthal Brothers as an inspector of hops. These hops were stored upon the fourth- floor. The plaintiff had worked there during the forenoon and went out to lunch. On his return he met the foreman, who volunteered to take him upon the elevator, which appears to have been used for this purpose, ' though probably a freight elevator. They had to walk through a passageway, the elevator being1 at the end thereof, and when they had reached the elevator shaft the foreman raised the gate and stepped .or reached into the shaft, as he says, for the purpose of reaching the operating rope to lower the elevatox1, which was above, when the plaintiff followed in and fell to the basement below. Tliei’e was a conflict of evidence' as to the physical surroundings; how dark it was, and how much light was afforded; and what the plaintiff might or might not have discovered if he had looked, and it is urged upon this appéal that the evidence shows the plaintiff to -have been guilty .of negligence as a matter of law, this being the only question seriously 'urged. -There appears to be no question that the place was dark; that it inquired artificial lighting, and 'a situation which might have been seen by one who was entirely familiar with the place, and who had not been out in the broader light, might be very obscure to one who had been there only a half dozen times more or less, and who had. just come in from the outside. From the -evidence we are persuaded that the jury had a right, to find that the plaintiff, invited by defendant’s foreman to x-ide in the elevatox1, had a right to assume; when the gate was opened and the foreman disappeared in the shaft, that it was ready for him to enter, and that he was-not bound to see all that a careful investigation might have disclosed. Under the ruleiaid down in Tousey v. Roberts (114 N. Y. 312, 316) and ap.pi'oved in Wilcox v. City of Rochester (190 id. 137, 141), the case was' propeidy submitted to the juiy, and the verdict shoxild not be disturbed.
. The judgment and oi’der should be affiraied.
Present — Woodward, Jenks, G-aynor, Burr and Miller, JJ.
Judgment and order unanimously affirmed, with costs.