The> jndgmep.f frqm which this .appeal is,taken should be affirmed. It,is,nqt spriously disputed .that the bqy in charge of the elevafor was negligent, in ,its rpanagement at,the time the ,plaintiff .was injured, or that he disregarded the instruction he had received from the chi,ef engineeqto give notice when the elevatorias ahoqt.to" descend, to thp place at- whiph thq pjainjiff wap working.The point, insisted upon,by the appellants, is that, oyen,"admitting, tjie negligence of the elevator,boy and that tjie jury, found prqperly upon that issue, the plaintiff was openly and avowedly guilty of oontributóry negligehcd as matter of law, 'and, fheieforej’ should ¿ót be permitted to recover. '. ■
.--'Th'edssue'of’contributory ñ-egligence wa® left- td-'the ’jm?y:irnder instructions quite favorable to the defendants.' ’"The evidence'" showed that the plaintiff was employed to do certain work in con-, nection with putting-locks on screen doors used at the elevators for purppses of,yenfjlajiqn,.,,,, Hje was, directed-, jbo.,tftke«.qff ■ tihe.loqks, and the-screws and put on larger...¿preves,, ,He had been working at various doors and lqpf^s fqr several ,day$,pripr ,to.,.the accident. The chief engineer of the defendants knew that this work was being done, and instructions had been given by him to the elevator operator, to" give''warning'to those working’n'éár'dr'.abó'út" the’elevators' by shouting whenever tlie elevator was."approaching tlie point at which tl*fcy,.VSV.Q-'WPBkiRg. ,'.It, waa,necessary.for the,.plaintiff, in perfoyrping his-work,-'to lean over into the -elevator,, well-hole. .The'work có'úM not-otherwise haVé beeii dófief "The elevator boy'opéned'the ■ door to permit the plaintiff to go .inside to dó his work, arid'while. *305the, plaintiff, was at.work the: elp.va.tpr, descended and struck, hipi. No warning whatever was given,by.the,elevator, hoy of.tjie approach of. the: car. He knew the. plaintiff, wag engaged- at.work, anff.. admits he was, told,to look after the ¡safety of the workmen, and that he faffqd to give: the. warning.he, was .instructed, by the; chief, engineer to give,
The case, then, is one - in which, the,- -workman was,, lawfully, engaged at work in and about, the,elevatorthe work was of .spell a character as required his close, attentipnpreqautipns wpt'.e taken for his protection, - whiph; were, "neglected, by. the. elevator' boy, and the plaintiff-had' a, right, to. rely upon, the operatpr, qfitlip car obeying the, instructions, given -him-' The, jury were justified in,their finding upon the issue of contributory, negligence. It. is, not, sug-i gested what the plaintiff .could, ha.ve done other, than w,as. dqne, considering,the nature, and,character of the-work, he was. performing t,o protect himself from injury. The case: seems to. be qpite.similar to Schmitt v. Metropolitan Life Ins. Co. (13 App. Div. 120). Here, as, there, -the plaintiff-, was,compelled - to .work, under circumstances, which rendered it impossible fpv.hiui.tq bp cpntinnpnsly looking, for the. movements, of the elevator. ■ It. was.not in,reliance,qn]y upon a conversation had between the plain tiff -hi msqlf, .and tjie elpvatQr.bpy respecting, the; niQvernqnts., off, thq. car,,but upon .thp instructions which had been, given, -by the chief,' engineer, tp the, eleyatoiyhoy, that _ the' plaintiff; performed, work. - requiring, his clqse, attentipn .inside, thp elevatpr.-shaft, , The. jury, weye entitled .to. take,-intq.com, sideration'all- the facts, and circumstances. connected with,the pase and- to determine therefrom whether the. plainfiff; omitteff tp.do.anyñ thing : winch a prudent,person, shpuld. have done tq secupe his own safety, and with the.finding of the jury upon that subject,we s.eq np reason to interfere:. . ■ ■ • . . •
The judgment" and.order appealed, from- should he afilrrn.ed, with costs. ■ -
Houghton and Scott, j<L, concurred; McLaughlin and Lambert, Jff., dissented.