Rumsey, J.:
The action was brought to recover damages for the negligence of the defendant, Avhich resulted in the fall of the plaintiff’s intestate through an elevator shaft, which caused his death. The complaint Avas dismissed at the close of the plaintiff’s case, and, therefore, upon this review the plaintiff is entitled to every inference in lier favor which the jury might have drawn from the evidence, and, unless it is certain, from a consideration of the evidence, that, under no circumstances Avould the jury be authorized to find a verdict in lier favor, the ease should have been submitted to the jury, and this judgment must be reversed.
The defendant Avas the owner and manager of a storage warehouse in the city of Brooklyn. About eight o’clock in the morning of the 27th of September, 1897, the plaintiff’s intestate with other people Avent to the warehouse to get some property there stored Avhich Weiss had just bought. A portion of the property consisted of heavy articles, which Avere not easy to move. The goods were so stored in the warehouse that it Avas necessary to carry these articles across an elevator well to get them out of the building. To do that the elevator had to be lowered to the level of the floor, and the goods were carried over it as it stood there. After they had been there a couple of hours the elevator for some purpose was *569raised, and, while they were waiting for it to be lowered again, and the plaintiff’s intestate was leaning upon a bar put across the opening for a guard, it slipped out of its place and he fell into the opening and was killed. That the jury might have found that the defendant was negligent cannot be disputed. The statute (Laws of 1894, chap. 481, § 21) prescribes that in any building in which there shall be a freight elevator not otherwise inclosed, the openings in each floor shall be provided with and protected by a substantial guard and with such good and sufficient trap doors with which to close the same as may be directed and approved by the commissioner of buildings. It is not denied that the guard erected in front of this elevator well did not comply with the requirements of this statute and that the jury would have been justified in finding that it was negligence to maintain it in the condition in which it was.
But the serious question in the case arises upon the question whether the jury might have found that the plaintiff’s intestate was free from negligence which contributed to the accident. The defendant claims that Weiss, just before his fall, was leaning upon the guard across the elevator well, and that if it was not contributory negligence of itself to lean against the guard, yet the post which sustained the guard was so loose and shaky that he must have been aware of its condition, and negligence must necessarily have been imputed to him in trusting his weight upon the bar sustained by so insecure a support. The case turns, therefore, upon the question whether the post which supported this bar was so plainly insecure that the jury must have found that notice of that condition was imputable to Weiss, because of the occasion which he had to go backwards and forwards over the elevator shaft. The jury must have found from the evidence that it was necessary to cross the elevator shaft for the purpose of carrying out these heavy articles which were to be taken from the warehouse, and that Weiss assisted to carry out these articles, and for that purpose Avent backwards and fonvards over the elevator. They must have found that the bar, Avhich was intended to bar the elevator Avell, Avas a substantial piece of Avood held up at each end by a cleat nailed to a post at either side of the opening. One post seems to have been near the Avail, and as to the condition of that post no complaint is made, and it *570seems to have been sufficiently secure to hold the bar. The other post was of wood, about three feet high, fastened to the floor by two six-inch spikes on each side of it by three L-irons, one end of each of which was screwed to the post and the other end screwed to the floor with six screws in each iron. These screws had apparently become loose, or else were of insufficient strength to keep the post steady, so that upon pressing against it the post was likely to give sufficiently to permit the bar to slip out of the cleat in which it rested and fall. The question is whether the jury must have found from the evidence that this defect was so noticeable that Weiss, as a reasonably prudent man, should have seen it. It does not appear from the evidence that the jury could not have found that Weiss ever saw the bar put in or taken out. That it was out of the post during the time they were carrying the goods across the elevator necessarily appears, but when or by whom it was taken out, or that Weiss ever saw it taken out or put in, or that he ever saw it in place until he went there and leaned upon it, does not appear, and the jury could not have found it. Neither is there anything to show that he had any occasion to observe the post or the insecurity of its fastening. His business about the elevator was to go over the shaft, when the elevator was level with the floor, in assisting to carry out the goods which were to be taken to the truck. It cannot be said, as a matter of law, nor would the jury be required to find, as a matter of fact, that in attending to that business his attention ought to have been or would have been directed in the slightest degree to the post which stood at the corner of the elevator shaft. There was no weight put upon the post at that time, and his duties had no reference to the post or to the purpose for which it was put there. There is nothing to show that either his attention or the attention of anybody else was called to the condition of this post until after the accident had occurred which caused his death. But the witnesses who testified to the condition of the post say that their attention was called to it after he fell, and that'they did not examine it until that time, and it is quite evident that there was nothing in the circumstances or the surroundings which would call upon either of them to examine it before. From the fact that each of those persons considered it necessary to examine the post after the man fell, it is quite clearly to be inferred that there was nothing about its condition *571which attracted or would attract their attention until the accident ■occurred. For all that appears, the fastenings of the post at the bottom were apparently sound and sufficient to hold the post steady, and the witnesses only discovered that it was not steady, and that it gave to pressure by examination which they made of it after the man was killed. The jury would have been called upon to consider that there was nothing in the work which was then doing, and in which these men were engaged, which called upon them to examine the condition of the guard which protected the elevator well. When they were at work about the elevator it stood level with the floor, and it was necessary that the guard should be removed, and when it was removed there was nothing to call attention t.o that which supported it. So far as the case shows, the first time that Weiss had anything to do with this guard was when he stood there waiting for the elevator to be let down to the floor, to enable him to complete his work. As he stood there, it appears from the testimony that Kaffenberg, one of the men who was working with him, stood at one end of the bar, leaning upon it. Weiss stood in the middle of the bar, also, as it seems, leaning upon it. How long he had been there does not appear. It does appear, however, that while he and Kaffenberg were leaning upon the bar it remained steady enough to support whatever weight they put upon it, which the jury might have found was not great. The immediate cause of the accident, as the jury might have found from the testimony, was that Koell, who was a witness in the case, in passing the post, which was shaky, put his hand upon it, and that immediately the post and the bar fell. Whether it was because of the weight which Koell put upon the post when he put his hand upon it, or whether one of the men who was standing against the bar changed his position and threw more weight upon it than had been there before, does not appear. But the jury might have found that the fall of the bar was caused by the act of Koell, who put his hand upon the post as he was passing the place where these two men were standing leaning against the bar. It does appear that the mere leaning on the bar did not cause it to fall because the men had stood there three or four minutes, and until Koell came up, before it fell. The question then arises whether, as a. matter of law, it was contributory negligence for Weiss to lean against this bar without having any knowledge of the insecurity of the post *572which supported, it. Upon that point there can be, as it seems to us, but one answer. Whether it was contributory negligence or not was clearly for the jury to say, and that question could not have been determined by the court. The bar. was there as a guard; these men were waiting for the elevator to come down ; the bar was in place ; nothing was more natural than that as they stood there, practically in a passageway, they should have drawn up close to the bar and leaned upon it, and it clearly cannot be said to be contributory negligence, as a matter of law, for them to have done so. The conclusion we have reached is that upon the evidence there was nothing to charge Weiss with knowledge of the insecurity of the post, and there was no reason on his part to believe at the time he leaned upon it that the post and bar did not in fact constitute a substantial guard, such as the law required the defendant to maintain ; and it'was for the jury to say whether, in view of all the facts, he was guilty of contributory negligence in trusting so much of his weight upon that bar that if the bar for any reason fell out of its place, he would be likely to lose his balance and fall into the well. It must be remembered that the bar itself was plainly sufficient for the pmrpose for which it was intended, and the post itself, so far as appears, was strong enough to hold the bar securely. • The defect was in the manner in which the post was secured to the floor, and that defect arose, not from the means taken to secure it, but from the condition of the screws which were put in to hold it steady.
Considering all these facts, we are of opinion that the jury might have said from the evidence that the condition of the post was not such as to attract the attention of Weiss, who had no occasion to' examine it, and that it was not contributory negligence for him to lean immediately against it, and, therefore, no improper act of his contributed to the injury which befell him.
The judgment, therefore, must be reversed and a new trial ordered, with costs to the appellant to abide the event of the action. '
Van Brunt, P. J., Barrett and Patterson, JJ., concurred; O’Brien, J., dissented upon the ground that plaintiff’s intestate was guilty of contributory negligence.
Judgment reversed, new trial ordered, costs to appellant to abide event.