(dissenting):
The jury has determined that the plaintiff sustained damages in the sum of $700, resulting from injuries sustained by him in an accident which occurred on the 27tli day of October, 1906, at about two o’clock p. m., while he was in defendant’s employ, and that such accident was caused solely through the negligence of the defendant. It is not claimed by the appellant that the verdict is excessive, or that error was committed by the learned trial court in the admission or exclusion of evidence, or in its charge to the jury. Therefore, the only questions presented by this appeal are: 1. Was the defendant guilty of actionable negligence ? 2. Was the plaintiff free from contributory negligence? 3. Did the plaintiff assume the risk of the accident ?
I understand the opinion concurred in by a majority of this court to hold that as matter of law the defendant was not guilty of actionable negligence and that the plaintiff did not give proof tending to establish his freedom from contributory negligence.
The material facts are not in dispute. The defendant is a manufacturing corporation having its factory at Lincoln park, just outside of the city of Rochester, and is engaged in the manufacture of railway signal devices. At the time of the accident the plaintiff was employed in defendant’s machinery department, located in a large one-story building, 200 or 250 feet in length and about 100 feet wide. This building had a balcony or gallery floor 15 feet above the ground floor, extending around the outside of the building, leaving an open space in the center. There was an elevator located in the northeast corner of this building, a slow moving freight elevator, operated by hydraulic power, which ran only from the ground floor *792to the haleony, a distance of 15 feet. It was: inclosed on one side (east) by the east Wall of the building, on the back (north) by wooden partition. At the front the-elevator was entirely open and at the west side there, was- only a wire partition. On the gallery floor the conditions were similar, except that at the back (north side) there was an open wire partition. So that on the gallery floor the elevator well was open on three sides and so that a person could easily look from that floor down to the entrance of the elevator on the ground floor. The elevator was operated by a steel cable located at the right-hand side looking into the car. A pull down of the cable caused the car to ascend and an upward pull, caused it to descend. The car stopped automatically at each floor, there being an automatic stopper catch, which stopped the car at the floor without any action of an operator. The elevator was one of the slowest moving built. Ordinarily it would only move at. the rate of forty-five feet per minute, but when tile cable was given an extraordinary pull it would run, at. the rate of sixty-five feet per minute. The elevator was equipped with automatic gates at each floor, which were operated by the mechanism of the ■elevator and in such manner as that when the car' left .the floor the gate descended at the same 'rate of speed- as the .car ascended. When the car of.the elevator stood on the ground floor the bottom of the gate was about seven feet above the floor, and When in operation the car and gate moved at exactly the same rate of speed, that is, the gate descended at the same speed as the car ascended.
It appears without contradiction that between 200 and 250 of defendant’s employees were at liberty and were accustomed to use this elevator at will and for any purpose that either or any of them might desire. Ho signaling device had been provided by which a person at either landing of the elevator could be informed when it was- to be started by any one of such -employees except as he might . shake the cable and thus give an indication of his intention to use it. Goncededly no rule had ever been promulgated by the defendant to the effect or in substance that an employee should not move the elevator until after he had ascertained that it Was not in use or •about to be used by another employee. In other words, such elevator under, the system of operation employed by the- defendant was liable to be moved by any one of its employees at their individual *793option and, so far as rules were concerned, regardless of the safety of other employees who might be engaged in operating the same, . and-it was thus permitted to be used indiscriminately by from seventy-five to one hundred employees for taking material from one floor to the other. It was practically in constant use, never being idle for more than five minutes at a time during the day. The learned trial court submitted to the jury the question of defendant’s negligence in the following language: “ In this case I am going to submit it to you as a question to be decided by the jury, as a question of fact, whether, considering the plant that has been described to you and considering the number of men who were using this elevator, it was exercising reasonable care on the part of the employer to allow this elevator to be used by the employees as it was used in this case without more safeguards in the way of signals, and without some definite rule or regulation promulgated and enforced among the employees directing them as to the making of suitable signals before attempting to raise or lower the elevator. I am obliged to submit that to you as a question of fact to be decided, and you will have to consider the whole situation. You must determine whether, from the number of men using this elevator, it was necessary for the reasonable protection of the employees there for the Signal Company to lay down reasonable regulations as to the use of the elevator and as to preliminary . signals to be given by one operative for the information of the others before the elevator be raised or lowered. That is a question of fact to be determined by the jury.”
It seems to me that in thus submitting to the jury the questions of fact the issue as to defendant’s negligence was stated as favorably to the defendant as it was entitled to. The question or questions thus presented were found in favor of the plaintiff, and I think it cannot be said that there is any evidence which tends to impeach the correctness of the jury’s determination in the premises. Here was an elevator permitted to be used indiscriminately by seventy-five to one hundred employees, any one of whom could move it upwards or downwards by simply pulling upon the cable, which was accessible to all, and the only method of giving information that one or the other of such employees was to put such elevator in motion was by a shake or rattle of such cable. I think it *794was clearly a question for the jury to determine whether the defendant ought not, in the exercise of reasonable care and prudence^ to have provided another or better system of signaling to indicate that the elevator was to be moved than such as is described by the evidence in this case. I think it also clear that it was a question of fact for the jury to determine whether the defendant was not guilty of negligence because of its failure to promulgate and enforce rules which would have prevented'the starting of such elevator by one employee until he had discovered that it was not in use or about to be used by another. The method of using the elevator in question adopted by the defendant, considering the number of employees who were at liberty to put it in motion at any time, was negligent in the extreme and was such that any employer, in the exercise of ordinary care and prudence, who had given the matter attention, would have discovered that such method of operation- was attended with unusual and unnecessary danger to his employees. I conclude that the finding of the jury that the defendant in-this case was guilty of actionable negligence is. abundantly justified by the evidence and that any other finding would have been contrary to and against the weight of the evidence.
It is said that the plaintiff failed to prove his freedom from contributory negligence and for that reason is not entitled to recover as matter of law.
The plaintiff at the time in question had been in defendant’s employ for about three weeks and during that time had been engaged in putting; heavy castings on his wheelbarrow at the upper or balcony floor, wheeling them to the door of the elevator at such floor, then pulling the cable in such manner as to cause the floor of the elevator to descend to a level with the floor below. He would then take his wheelbarrow out and deposit the casting where it was required and then return, to the elevator to be taken to the floor above for' another load. At the time in question the plaintiff had loaded a casting upon his wheelbarrow^ wheeled it onto the elevator floor, which was at a level with the upper or balcony floor, caused the elevator to descend until it came to a level with the' ground floor and then ran his wheelbarrow from the elevator to the place Where the casting was to -be deposited. He immediately" returned and found the elevator floor in precisely the same position *795as lie liad left it. He ran liis wheelbarrow onto the elevator floor and just as he had raised his foot to step in, following his wheelbarrow, an employee upon the floor above raised the elevator, causing him to lose his footing, he fell backwards and he was caught between the ascending floor of the elevator and the descending gate, and sustained the injuries of which he complains. >
It seems to me that from those facts, which are uncontradicted, it was a fair inference to be drawn by th.e jury that he was exercising ordinary care and prudence; that he was performing his duty in a reasonably careful 'and prudent manner. He did not say upon the stand that he was careful. He did not testify that he looked or listened before he attempted to enter the elevator. He simply says that he left the floor of the elevator on a level with the floor where he was to deposit his load; that he came back to go after another load; that he found the elevator floor in exactly the'same position as he left it; that he ran his wheelbarrow upon it in the ordinary way and that as he attempted to step onto the floor of the elevator, following his wheelbarrow, the floor was raised; that he was thrown backwards and caught between the floor and the descending gate.
It seems to mé that upon those facts the jury was amply justified in finding as it did that the plaintiff was free from contributory negligence.
It cannot be said upon the evidence in this case, under the authorities, that the plaintiff cannot recover because of the assumption of. risk on his part.
I conclude that the judgment and order appealed from should be affirmed, with costs.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.