We assume for the purposes of this decision that by reason of St. 1885, c. 374, § 110, the defendant was using the elevator illegally, and that the plaintiff did not share equally in the breach of law. We also assume that there was evidence of negligence on the part of the defendant towards the plaintiff. But the negligence, if any, consisted only in the failure to provide an automatic guard to the shaft; so far as appears, the defendant was not responsible for the elevator car having been moved. This being so, whether it be said that the plaintiff took the risk, or that he was negligent, or that the defendant’s negligence was not the proximate cause of the injury, the result must be that the plaintiff cannot recover. For the plaintiff knew as well as the defendant that there was no guard to the shaft, and, we must presume, understood that, if the elevator car was not there when he pushed his coal car into the well, his car would tumble down the hole. In other words, he appreciated the danger so far as the defendant contributed to it. Although very possibly a guard would have prevented the injury, the plaintiff’s conduct was nearer to the event. He did not rely on any such preventive, but took the chances of the elevator car being where he left it.
Exceptions overruled.