(dissenting). I dissent and vote to affirm. The testimony of the elevator operator shows that the accident occurred when he attempted to close the shaft door without looking to see whether any one was about to leave the elevator. Defendant admits that plaintiff’s leg struck against an obstruction when she was alighting. That, too, was plaintiff’s testimony. The variance in proof related to the cause of the obstruction. Whether the obstruction arose because of an initial stop below the loft-floor level, or whether it was caused by a raising of the movable part of the floor above the loft-floor level, or whether, for both reasons, the fact is there was an obstacle in plaintiff’s path which caused her to fall. Whichever view of the evidence the jury chose to accept, the proof adduced was within the scope of plaintiff’s testimony, and was concededly within the allegations of the complaint and the bill of particulars. In the circumstances, the court did not err in granting plaintiff’s request to charge.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.