The plaintiff has succeeded twice before a jury and in each instance the trial judge has permitted the verdict to stand. *784Upon the first appeal to this court it was held that prejudicial error had been committed in admitting testimony, not that the defendant had as a matter of law fuhy performed its duty to the plaintiff, as seems to be held in the prevailing opinion. The question relating to evidence is not now in the case. The other question was in the case upon the first appeal and is here now. It is now proposed to hold that there is no liability at all. I cannot take that view of the case.
The plaintiff was set at work to help the carpenter in the work of putting doors in the elevator' shaft, at the bottom of the shaft. It was not the work of a moment. The two men. had worked a good part of the forenoon and were continuing their work in the afternoon, when the accident occurred. The foreman knew that the men were required to work in the shaft, and that they would be in dangor if the elevator came down. He also knew that if the elevator met with an obstruction in its downward course, it would stop and automatically turn off the power so that it could not be moved up or down until the power was again made éffective. That was just what happened upon this occasion, when the elevator came down upon the plaintiff. When the progress of the elevator was sufficiently arrested by coming in contact with the plaintiff to turn off the power, it stopped, holding him and crushing him, until the power was again applied. From what the foreman told Bernhardt, who is called the elevatorman, the inference is sought to be drawn that the elevator was not to be moved at all while the work below was- in progress, and that Bernhardt was expected to stay there all the time and do nothing else but to see that the elevator was not moved. That was not what the foreman told Bernhardt, and I think the inference is quite to the contrary. If it was intended that the elevator should not be operated from the time the men commenced work until they had completed their job, it hardly seems reasonable that a man would be stationed at the elevator, whose only duty was to watch it and prevent its being moved, when that could be accomplished by simply turning off the power. It would have taken but a few moments to have turned off the power, and then, as the foreman himself testifies, the elevator could not have been operated and would have been entirely safe.*785That, I think, the jury was warranted in finding should have been done in the exercise of reasonable prudence and with due regard for the safety of the men below, and for any neglect of duty in that regard the defendant is liable, since it was the duty of the defendant to adopt a method reasonably adequate to prevent the elevator from being operated and injuring the plaintiff while he was engaged in this perilous work. That duty the defendant could not delegate to either the foreman or Bernhardt or any other subordinate and escape liability for want of care in that regard. I assume that was what' the learned trial judge had in mind in charging the jury that in operating the elevator Bernhardt was not an employee but performing the duty of a master. Perhaps that statement was too broad, but the grotmds of liability as finally stated leave the defendant, I think, without cause for complaint.
Defendant’s counsel also requested the court to charge that if the accident was caused by the negligence of Bernhardt in failing to carry out his instructions, and those instructions were adequate, then the accident was caused by the negligence of a fellow-servant and the plaintiff could not recover. While that request was refused, I think the error, if any, was cured by subsequently leaving the question to the jury as to whether the means adopted to prevent the accident and protect the plaintiff working in the shaft were reasonably adequate.
I, therefore, reach the conclusion that the judgment and order should be affirmed.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.