We accept fully the doctrine that it is obviously dangerous for one to put his head or any part of his body into the line of passage of an elevator car when the car is falling or moving or may be expected to fall or move toward him. Murphy v. Webster, 151 Mass. 121, and 156 Mass. 48. Degnan v. Jordan, 164 Mass. 84. Ramsdell v. Jordan, 168 Mass. 505. Cowen v. Kirby, 180 Mass. 504. So too one who walks into an open elevator well is, unless something more appears, guilty of contributory negligence. Taylor v. Hennessey, 200 Mass. 263. Amiot v. Foster, 213 Mass. 573. And see the cases collected by Loring, J., in Humphreys v. Portsmouth Trust & Guarantee Co. 184 Mass. 422, 424. For like reasons a passenger in an unboxed elevator acts at his peril if without necessity he suffers any part of his body to protrude beyond the plane of the car. McDonald v. Dutton, 190 Mass. 391; 198 Mass. 398, 400.
But in all such cases it is upon the particular facts presented that the court must determine the question whether as matter of law the conduct of the plaintiff conclusively shows that he was not in the exercise of due care. Carey v. Arlington Mills, 148 Mass. 338. Gordon v. Cummings, 152 Mass. 513, 517. Ballou v. Collamore, 160 Mass. 246. Humphreys v. Portsmouth Trust & Guarantee Co. 184 Mass. 422. Wright v. Perry, 188 Mass. 268. Wills v. Taylor, 193 Mass. 113. Hamilton v. Taylor, 195 Mass. 68.
Accordingly in Degnan v. Jordan, 164 Mass. 84, stress is laid in the opinion of the court on the fact that from the situation of the elevator the plaintiff had notice that something about it Was probably out of order; and this was assigned as a reason for holding-that his conduct in getting under the car was lacking in due care. In the case at bar the plaintiff had no such notice.
The janitor employed by the defendant had charge of this elevator, and was the only person who had the right to operate it. The car was stationary on the floor above the plaintiff, and the *547janitor was on a floor below her. She had occasion to speak to him; and to attract his attention she leaned over the balustrade of the stairs, so that her head came directly into the line of descent of the car. Just then the car fell, struck her head, and injured her. There was evidence that the fall was due to the negligence of the .defendant in allowing the rope that held the car and the safety clutch to be in a defective condition.
The jury could find that the plaintiff was justified in believing that the car would not be moved until the janitor should have started it. She knew that the car was above and the janitor below her. She was not bound to know or to apprehend that the apparatus which held the car was defective, or that the defendant had been negligent with regard thereto. As in many of the cases cited above, the jury could find that she had a right to rely to some extent on the defendant’s having performed his duty, when there was nothing to indicate the contrary, and on the presumption that the usual course of events would be followed. Doubtless she assumed the risk of the ordinary operation of the elevator; it may be that if some temporary substitute of the janitor had been put in charge of the elevator and had started it down and this had caused her injury, it could not be said that she was in the exercise of due care. But in the opinion of a majority of the court we cannot hold that as matter of law she was bound to anticipate and guard against what did happen, and therefore it did not appear conclusively that she was negligent.
It follows that there was no error in the refusal of the defendant’s requests for instructions, so far as these were refused.
The part of the charge to which the defendant specifically excepted was not erroneous, as applied to the evidence. It called the attention of the jury to matters which it was material for them to consider.
Exceptions overruled.