dissenting:
Assuming that negligence on the part of the defendants was proved, the question remains, whether, from all the evidence on both sides, the inference can be justly drawn that the plaintiff exercised that degree of care and caution which the law requires to absolve a party from the imputation of contributory negligence. The rule of law upon this subject is well settled. A plaintiff who seeks to recover damages for a personal injury sustained through the negligence of another assumes the burden of proving — 1. That the negligence of the defendant caused the injury. 2. That he, the plaintiff, was free from fault which contributed to the injury. It is not enough to prove one of those propositions. Both must *247be established, otherwise it is the duty of the court to nonsuit the plaintiff. (Cordell v. New York Central & H. R. R. R. Co., 75 N. Y., 330.) The counsel for the plaintiff has not referred us to •any evidence tending to show that the plaintiff exercised any care or caution whatever to avoid the accident which happened to him, but relies upon the verdict of the jury, in favor of the plaintiff. That will hardly do; the defendants moved for a nonsuit when the plaintiff rested, and again at the close of the testimony, and exceptions were taken, to the denial of ‘those motions. It was error to deny those motions, unless there was evidence in the case sufficient to authorize a finding that the plaintiff was free from negligence on his part. Negligence consists in doing something which a man of ordinary prudence would not have done in the circumstances in which the plaintiff was placed, or in the' omission of something which a man of ordinary prudence would have done in the circumstances mentioned, and “ when the circumstances point just as much to the negligence of the plaintiff, as to its absence, or point in neither direction, the plaintiff should be nonsuited.” (75 N. Y., supra.)
The plaintiff was injured by falling through an opening in the floor of the basement of a store, occupied by the defendants and ■other tenants. The opening was made for the purposes of an elevator, running from the cellar through similar openings in the floors above to the upper stories of the building, and had been in use for a considerable period. The defendants were wholesale dealers in stoves and the plaintiff was one of their customers. The plaintiff had made a purchase of goods of the defendants on the day of the accident, which was May 27, 1878. Between five and six o’clock on the afternoon of that day he returned to the defendants’ store to get the goods which he had purchased; what followed was related by the plaintiff as a witness upon the trial. “ When I entered the room, there was no one in it except the carman, and not finding any one there to deliver the goods I was in pursuit of, I went to the elevator to call some one from up stairs, and that is as far as my memory serves me.” He stated also that the room was pretty dark, that the elevator was in a place which was imperfectly lighted, and that when the accident happened the usual guard or barrier con*248nected witli the elevator was not in its place; that he knew the situation of the elevator, but that he had never noticed that it extended below the floor of the room from which, he fell. Upon cross-examination the plaintiff testified that he had been'several times to the elevator at the same place, and called to people in the stories above, and had received answers from them. That the guard which he frequently found at the elevator was a chain or bar of wood across the opening, andffhat when he went to the elevatorio speak to some one above, the platform of it must have been up.
The carman referred to was the only other person present when the accident happened. He saw nothing of it, and had no knowledge how it happened.
”We are of opinion that the testimony furnishes no proof that the plaintiff exercised any care whatever to avoid the accident.
On the contrary, we think that the only inference that can be fairly drawn from the evidence is that the plaintiff, while in the act of calling through the opening to some one above, or while listening for a reply, lost his balance and fell to the cellar beneath. His-statement that he had not noticed that the opening extended into the cellar does not relieve him from the imputation of negligence. The guard which he had frequently seen was a palpable indication that there was an opening in the floor on which he stood, and that the purpose of the guard was to protect persons against the danger of falling through the opening. The effort made on behalf of the plaintiff to show that there were trap-doors in the floor, by which the opening might be closed, was a failure. But whether there-were trap-doors or not, the plaintiff showed great carelessness in disregarding the admonition afforded by the absence of the usual guard, and approaching the elevator without ascertaining whether the opening in the floor was closed or not. The leaving the guard down, no doubt, was an act of negligence on the part of somebody, but it would be hard to treat such an act as an invitation to the-plaintiff to forego ail care of himself, or as an assurance that the-removal of the guard removed the danger of the opening — such a. conclusion would practically abolish the rule respecting the legal effect of contributory negligence.
The plaintiff’s familiarity with the elevator., renders the cases-*249relating to injuries suffered by persons who had been licensed or invited to come on defendants’ premises, in consequence of concealed openings in the fioors 'thereof, inapplicable. Nor does the defendants’ violation of the statutory requirement to keep the elevator secure, excuse the plaintiff’s negligence. (Sh. & Red. on Neg., § 591.)
The exceptions should be allowed, and a new trial granted, with costs to abide the event.
Exceptions overruled, and judgment for plaintiff upon the verdict, with costs.