Goggin

Plaintiff had a verdict and judgment in this action for damages on account of personal injuries suffered by him while in the employ of defendant, a corporation, which injuries he alleged to be the consequence of defendant’s negligence. The immediate occasion of such injuries was the fall of a platform freight elevator of hoist used by defendant for transporting goods between the several floors of its warehouse, plaintiff being precipitated with the same from the third story to the basement of the building. It is insisted for reversal that plaintiff is clearly shown by the evidence to have been guilty of contributory negligence; that he knew the elevator to be dangerous to passengers, and that a rule of the establishment forbade employees to use it except for the carriage of freight; that, having such knowledge, he should have descended by a stairway, but was in fact using the elevator for his greater convenience in that particular when the accident occurred. Negligence of plaintiff was not pleaded in the answer, and he contends that it is therefore unavailable as a defense; we do not find it necessary to consider the question of pleading.

There was evidence that the elevator was…