(dissenting):
Plaintiff was in the employ of defendant as a porter, and had been so employed for several years prior to the 11th of January, 1908, when he sustained the injuries to recover for which Ibis action was brought. There were a number of porters employed' by the defendant,-who maintains a large department store in New York city. One Beinhart was foreman of the porters, and the plaintiff was under his orders. Among other duties which these porters were called upon' from time to time to perform was cleaning the elevator shafts. There were a large -number of passenger elevators in the building, and on the morning of January 11, 1908, Beinhart directed plaintiff to clean - the bottom of the shaft of a passenger elevator, and to clean this elevator shaft it was necessary to place planks across the shaft to stand on while engaged in cleaning it. After receiving this order plaintiff got a plank, told the man in charge of the elevator that he was going to clean the shaft, placed the plank across’the shaft and went to work. This was on the basementfloor; the shaft extended down to the floor below. While the plaintiff was engaged in this work, Beinhart came and saw plaintiff at work and gave him instructions in regard to the work. About two minutes after, the elevator was moved upward or toward the top of the building, when one of the counterweights descended and struck the plaintiff, inflicting . ■severe injuries.
• It was the custom of the men doing this work to inform - the man in charge of .the particular elevator in the shaft of which they were going to work, and that rule ■was complied with by the plaintiff in this casé. . There was evidence that after this *433notice was given to the man in charge of the elevator, he placed notices on the various doors leading to the elevator on the yarious floors of the building that the elevator was not running. There was no evidence as to what caused this elevator to move, the man in charge of the elevator not having been produced as a witness.
The general manager of the defendant was called by the plaintiff and testified that in the defendant’s store there were thirty-four or thirty-five passenger elevators; that there was no hook of printed rules for the elevator operators; that there were some written rules that were given to the elevator operators, hut the substance of them was not proved nor was a copy produced. Upon this testimony, at the close of the plaintiff’s case, the court dismissed the complaint to which the plaintiff excepted.
The plaintiff was sent by his foreman to work at the bottom of an elevator shaft. It was obviously a place of danger, the safety of the plaintiff while at work depending upon the absence of movement in the elevator. The obvious danger was that, if the elevator moved down the plaintiff was liable to be crushed, and if it moved up the descending countérweights would necessarily move downward and subject plaintiff to a liability to injury. There was, therefore, it seems to me, an obvious duty imposed upon the master to maintain the place at which he had put his employee at work as a safe place to work, and one that he,could not delegate without assuming-responsibility for the negligence of' the agent to. whom he delegated the authority to act for him at the time. The foreman whom the defendant had placed in charge of these men had directed the plaintiff to work at this, place. Within about ten minutes of the time of the accident the foreman had seen the plaintiff at work there and had then given him instructions as to his work. The man in charge of this elevator was ' given notice by the plaintiff that he was at work in the elevator shaft, and notwithstanding this notice and the obvious duty resting upon the defendant to furnish the plaintiff a safe place in which to work, the elevator ascended with the result that the Counterweights descended and crushed the plaintiff. The *434duty always rests upon an employer to furnish his employees with a safe place in which to work, and that includes the duty of keeping the place at which an employee has been directed to work reasonably safe. This is a duty which the master cannot delegate to another employee so as to free him from liability. (Simone v. Kirk, 173 N. Y. 7; Kirby v. Montgomery Brothers & Co., 197 id. 27; Glennon v. Star Co., 130 App. Div. 491; affd., 197 N. Y. 597; Palmijiano v. Hyde-McFarlin Co., 126 App. Div. 221; affd., 194 N. Y. 524.) In the latter case the court (quoting from McGovern v. Central Vermont R. R. Co., 123 N. Y. 280) said: “.When ⅜ ⅞ ⅜ the master directs the performance of work by his servant at a place which may become dangerous and such danger may he foreseen and guarded against by the exercise of reasonable care, it is the master’s duty to exercise such care and adopt such precautions as will protect' the servant.” We have, therefore, in this case the fact that the plaintiff was placed by the defendant’s direction in a place to work which was obviously dangerous and where the safety of the plaintiff depended upon the elevator above him being kept stationary. We have the duty imposed by law upon the master to see to it that the place was maintained in such a condition that it continued to be during thé time that the plaintiff was so employed ■ a safe place to work, the safety depending upon the elevator being kept stationary during the time that the plaintiff was there at work. It was, therefore, an obvious duty of the defendant to take siich precautions as were necessary to prevent the elevator from being moved while the plaintiff was at work. Plaintiff’s immediate superior had knowledge of the conditions and had knowledge of the fact that the plaintiff was at work in this dangerous place. There is no evidence as to who moved the elevator, but the existing conditions would seem to preclude any one from interfering with it except those in whose charge the defendant had placed the elevator or the machinery that moved it. This is, therefore, I think, one of the cases in which the application of the maxim res ipsa loquitur is justified and proof of the accident itself justifies the inference that the master or those in whom he had vested authority to control the movement of the elevator were negligent, throwing the burden upon the defendant of estab-*435fishing the fact that he had performed the duty that the law hnposed upon him of taking reasonable precautions to keep this place safe during the continuance of the plaintiff1⅛ work in the shaft. The law imposed this duty upon the master and it was one that he could not delegate so as to escape liability. The elevator itself and the machinery that moved it were under the control of the master and not under that of the plaintiff or those occupying positions in the master’s employ of a similar grade, and the inference is justifiable that the-movement of the elevator was caused by the action of the master or of those upon whom he had devolved the duty of controlling the movements of the elevator. The elevator did move, rendering the place at which the plaintiff was at work unsafe and causing the plaintiff the severe injuries for which he seeks compensation. This, I think, threw upon the master the burden of showing that the accident was one which happened notwithstanding the proper performance of his duty to maintain this position in which he had placed the plaintiff at work as a safe and proper place for him to work.
Nor do I think as a matter of law that the plaintiff assumed the risk of the negligent movement .of this elevator while in this position of danger. He was clearly in a position in which he could not be expected to watch for the movement of the elevator and there is no evidence that under such conditions the elevator had ever before been moved so as to subject a person occupying his position to danger. He had given notice to the person in whose custody the defendant had placed the elevator. • His foreman had orderfed him to work at this particular place and was aware ten minutes before the accident that the plaintiff was then working in the shaft. The law as I view it placéd the absolute duty upon the master to keep the place at which the plaintiff was working as safe as the conditions under which the work was done permitted, and a reasonably prudent person under those circumstances could not have presumed that the elevator would move and subject him to danger. It seems to me that from the evidence the inference was justified that the master had not performed the duties which devolved upon him; that the injury to the plaintiff resulted therefrom; that the burden of showing that he had exercised the necessary care to *436prevent the accidént and render the place at which he had directed the plaintiff to work ás safe as the circumstances permitted was cast upon the master, and that the plaintiff did not as a matter of law assume the risk of this violation of the defendant’s duty to him.
It follows, therefore, that the judgment appealed from should he reversed.
Dowling, J., concurred.
Judgment affirmed, with costs.