The judgment and order should be reversed and a new trial granted, with costs to appellant to abide event.
The action is for damages for personal injuries alleged to have *218been caused by the defendant’s negligence. A hoisting device, or -elevator, being used by defendant in the construction of the Hotel Seneca, in the city of Rochester, fell while being changed and struck plaintiff, causing the injuries complained of.' It had been in use for hoisting materials to the eighth floor and the change • was to enable.it to be used for hoisting to the seventh floor.
. The defendant failed to comply with the Labor Law with reference to hoisting apparatus or elevators used in a building in the course of its construction. (See Laws of 1897, chap. 415, § 20, as amd. by Laws of 1905, chap. 520.) The openings or shafts were not inclosed or fenced at all. The court left it to the jury to fin d whether this failure constituted negligence which caused the injury' and whether the plaintiff assumed the risk of the absence of these barriers. The jury found for the plaintiff on these questions. They are, both troublesome. It was well enough to find that the failure to comply with the Labor Law was negligence, but it is difficult to see how the absence of these barriers was the cause of plaintiff’s injuries. The barriers on two sides were required to be adjustable, and from three to four feet from the floor and two feet from the opening. It would seem that the plaintiff could, with the barriers present, have put his body inside the shaft so as to be struck by the falling elevator as he was at this time and would just as likely have done so. And as to assumed risk the plaintiff knew that there were no guards or barriers about the openings as required by the Labor Law. How could it be said that he did not appreciate the dangers of operating or changing the elevators without them? It seems to me for these reasons there was a failure to establish legal liability upon' this branch of the case.
A further ground of negligence on the part of Hie defendant, submitted to the jury was under the Employers’ Lability Act (Laws of 1902, chap. 600), the failure of a superintendent or person-acting as such to require the change of the elevator to be made in a reasonably safe way. Very'likely the man Mapes could properly be found by the jury y-ithin this statute and negligent in the respect complained of, but we can not say whether, the jury found negligence under the Labor Law or the Employers’ Liability Act. Both were submitted to them and there were no special findings, only a general verdict.
*219We think upon the evidence liability under the Labor Law was not established and, therefore, a new trial should be had.
We do not pass upon the question of contributory negligence in placing plaintiff’s body within the opening and under the elevator which he knew was being changed. This is a close question also. It will arise if another appeal is taken to this court and will be determined upon the evidence then in the record.
Robson, J., concurred; McLennan, P. J., in result on ground defendant was not shown to be guilty of negligence, and Kruse, J., on ground plaintiff assumed the risk; Spring, J., dissented and voted for affirmance.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.