door open. There was plenty of light from the front windows to see the elevator door. * * * When I said the boy came in on the run, that is the best way I can describe it. The boy came in off the street on a run; well, moving rapidly. He was not walking. He was what I'd call running, moving rapidly. After the accident, the elevator in the south shaft was brought down from above from an upper floor. There was a light in it. I presume it was an elevator operator who was operating it. I didn't know who it was at the time and am not personally acquainted with him now. * * When I saw the boy fall down the shaft, I was on the main floor, the street floor of the Phoenix Building." And on cross-examination the witness testified: * "Q. I will ask you if you will, Mr. Buchner, to assume that the clerk's desk over there with the wire grating on top is the elevator door, the door leading into the elevator shaft, and I will ask you also, if you can, to illustrate to the jury the manner in which the young man pressed against the door in opening as he came in; just go over to that thing and consider it the door and illustrate to the jury how it was done and how he got up to it, moving as near as you can at about the rate of speed you think he did. A. (Illustrating). It is pretty hard for an old man to be as quick as, a young man was. At least, the boy came in on a run and approached the door in this manner and threw his weight against the door and came back and swung right around like this and went down. He was moving considerably faster than I was; he was on The weight of the boy's body was against the door. Then he pulled with the left shoulder and side against the door. He then sprung on the door. He threw his body against the door as soon as he sprung it, and after the door was sprung he pulled the door toward the north, and as the end of the door reached his body he swung so as his right shoulder passed the edge of the door, and his back was to the east and his face towards the west going inside the shaft. I saw him going down. That was the last I saw of him in that operation. a run. * * * Harold F. Rundle, who at the time of the accident was employed as an elevator boy at the Phoenix Building operating the elevator on the north side, testified as a witness for the plaintiff substantially as follows: "There are two elevators there. I was working there in the month of September, 1916, in that same capacity. I knew Clinton Page and was working there the day that Clinton Page was injured; saw him before the injury and saw him after the injury. On that day he was working on the elevator, running elevator. He was one of the elevator boys as they are called here. In running it, I mean he was one of the operators of the elevator the same as I was. He was operating the elevator cage on the south side. This accident happened at 2:30 in the afternoon. I saw Mr. Page after the accident. As soon as he dropped, I came down. * * * I was in the south cage at the time I found out he had fallen down the shaft. The north cage at that time was on the main floor of the building with the light off. When the door is closed and the light off, you cannot see these cages standing there when you walk in, very well, unless you should happen to look pretty good; stand at the door and look in and take a good look to determine. Mr. Page had worked there three days. He was on his third day, if I am not mistaken. Those elevator doors are opened and closed by a latch from the center of the door; right even with the glass and the metal in the glass, come to the bottom of the metal, and right there is the catch just below the glass. That is operated from the inside. These doors, when they are closed from the inside, are opened only from the inside. On or about the 8th day of September they were three of these doors in this elevator entrance that could be opened from the outside when the cage was closed, and those entrances were the sixth on the north side, the fifth on the south side, and the main floor on the south side. All the others could * not be so opened. If the catches and locks of the doors on the sixth, fifth, and first were in the same shape as they were on the other floors, they could not be opened from the outside. Those doors were in that condition ever since I worked there, all the time I worked there, and that was during all the time since I went to work in November, 1915, until I quit in June, 1917. There is little difference in the operation of these two elevator cages, the one on the north and the one on the south side of that building. One is faster than the other. The south side is the fastest elevator cage. The south side runs faster than the one on the north side, makes its ascent and descent more rapidly. The space or distance through which these elevators run was approximately 80 feet. If the elevator is away from the first, the main floor, and one steps into the shaft, they would fall a distance of around 22 feet, or something like that. * That elevator is operated by an electric system and was such a system during all the time I was operating there. * * * There is no way of signaling or way of securing these doors when the elevator is taken away or moved from any certain floor. You cannot tell when the elevator leaves the floor by signal. The people signal where they are at. There is nothing to show when stepping or looking into the shaft whether or not the elevator is there. * * The elevator on the south side will perform acts and things other than the one on the north side. * * * At the time Mr. Page fell down the shaft, the north cage was on the main floor standing on the main floor with the light off and the doors closed. Mr. Page had not been operating the north cage at the time. He had been operating the south cage. I remember when he left the building, and he was gone, I should judge, between 5 and 10 minutes. At the time he left the building he had been operating the south cage, and at that time I was engaged in operating the north cage. The glass on these elevator doors has woven wire through it and is quite a thick glass. I have opened the south cage door from the outside, and it required quite a bit of strength to open it. A boy such as I at that time could readily open it from the outside and did not need to throw his whole weight against it to open it; just push against it and it would come back. I couldn't do that with the one on the other side; couldn't do that with any except that and the one on the fifth and the one on the sixth. All of the others were secure. * * When Mr. Page left the elevator on the south side, he left the door closed, and he left the elevator there with the light out. I had been working there quite a while before Mr. Page came. * "Q. Did you have any instructions from the manager about the operation of these different elevators? By the management, I mean Mr. R. C. Howell? A. I had instructions that you are not supposed to leave your elevator during working hours, and, according to how you are supposed to run them, one is supposed to be going up and the other is supposed to be going down. Q. Was there any particular instructions relating to the south side? A. No particular instructions. Q. As to the different elevator boys? A. Well, when there was a new elevator boy, we had instructions to put him on the other elevator, because it was the safest, and to break him in good first before you put him on the other elevator." On cross-examination the witness testified: "In each cage there was a light. There is supposed to be a light in each cage, and on September 8, 1916, at the time this accident happened, there was a light in each cage, and those lights were sufficient to show the position of the cage to a person coming in or going out. I tock the elevator from the main floor after Page had left it and operated it for the carriage of passengers on the south shaft, and did that in my regular course of work. I used that because it was faster, and when 8Vol. VIII-Comp. working alone I could use the south side elevator. If a boy is left alone, he operates the south side to carry the passengers because it was a faster moving elevator." In the case of Zvanovich v. Gagnon & Co., 45 Mont. 180, 122 Pac. 272, the plaintiff claimed damages against the defendant for alleged disregard of its duty to use ordinary care to furnish him a reasonably safe place in which to work, in that it carelessly left an open shaft in a building unguarded, and that while passing through the building for the purpose of seeking a place to urinate he fell into the unguarded shaft and was injured. After reviewing the evidence, the court said: "We think the plaintiff was properly nonsuited, for the reason, as disclosed by his own testimony, that he was guilty of contributory negligence. We shall assume without analyzing the testimony on that point, that the act of the defendant in leaving the elevator shaft unguarded was negligence. The rule is that, if the issue of negligence or contributory negligence is a fairly disputed question of fact, it must be resolved by the jury; but if the evidence is perfectly clear, it is for the court. Wall v. Helena St. Ry. Co, 12 Mont. 44-61, 29 Pac. 721. We think this evidence is so clear and convincing that reasonable men of fair and unbiased minds cannot differ as to its effect. The plaintiff was employed on the outside of the building; a toilet had been reserved for his use about 150 feet distant; he had used it on different occasions during the two months of his employment; once he had entered the west wing through the north door, the same door that he used on the day of his injury, for the purpose of urinating." And the court quotes with approval the language of Mr. Justice Wolverton, in the case of Massey v. Selle1, 45 Or. 267, 77 Pac. 397, as follows: "Now, if it was so dark in there that he could "see nothing," it was certainly an act of folly on his part to enter on a cruise of exploration and discovery, without stopping to determine whether it was safe to proceed. To bolt headlong into a place little known, and where the senses cannot take note of it, is not the act of a prudent man, and there is no chance for any other inference or deduction concerning it. Reasonable minds could not come to any other conclusion touching it, so that there is nothing for the jury to determine, and the trial court very properly declared the result, as a matter of law.' See Johnson v. Maiette, 34 Mont. 477, 87 Pac. 447; McCann v. Atlantic Mills, 20 R. I. 566, 40 Atl. 500; Piper v. Cambria Iron Co., 78 Md. 249, 27 Atl. 939; Geis v Tennessee, C. I. & R. Co., 143 Ala. 299, 39 South. 301; Bridger v. Gresham, 111 Ga. 814, 35 S. E. 677; Hilsenbeck v. Guhring, 131 N. Y. 674. 30 N. E. 580; Gillespie v. John W. Ferguson Co., 78 N. J. L. 470, 74 Atl 460. See, also, Meehan v. Great Northern Ry. Co., 43 Mont. 72, 114 Pac. 781, and Molt v. Northern Pac. Ry. Co., 44 Mont. 471, 120 Pac. 809," As stated by Mr. Chief Justice Brantly, speaking for the court in the case of George v. Northern Pac. Ry. Co., 196 Pac. 869, decided February 14, 1921, and not yet [officially] reported: "In this jurisdiction it is the rule that contributory negligence is a matter of defense to be esablished by preponderance of the evidence. The plaintiff has made out a prima facie case when his evidence discloses injury to himself and that the negligence of the defendant was the proximate cause of it. Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905; Hunter v. Montana C. Ry. Co., 22 Mont. 525, 57 Pac. 140; Monson v. La France Copper Co., 39 Mont. 50. 101 Pac. 243, 133 Am. St. Rep. 549; Therriault v. England, 45 Mont. 376, 116 Pac. 581; Howard v. Flathead Ind. Tel. Co., 49 Mont. 197, 141 Pac. 153. It is the rule also that when the circumstances attending the injury as detailed by the plaintiff's evidence, raise a presumption that he was not, at the time, in the exercise of due care, he has failed to make out a case for the jury. The burden is then upon him, and if he fails to introduce other evidence to remove this presumption, he is properly nonsuited. Cases cited supra; Harrington v. Butte, A. & Pac. Ry. Co., 37 Mont. 169, 95 Pac. 8, 16 L. R. A. (N. S.) 395; Longpre v. Big Blackfoot Milling Co., 38 Mont. 99, 99 Pac. 131; Zvanovich v. Gagnon & Co., 45 Mont. 189, 122 Pac. 272.”" See, also, Neilson v. Missoula Creamery Co., 196 Pac. 357, decided February 28, 1921, and not yet [officially] reported. [8] From all of the affirmative proof introduced on the part of the plaintiff in this case, it seems clear that the decedent was not only guilty of contributory negligence, but that he was foolhardly to such an extent as to constitute gross negligence on his part. The burden rested upon the plaintiff to prove by a preponderance of the evidence that the negligence of the defendant was the proximate cause of the decedent's injury. Assuming the defendant quilty of negligence, from all of the evidence introduced it does not appear that the decedent, at the time of the accident, exercised due care for his own safety, and therefore a case for the jury was not made. Applying decision of our court to the evidence introduced in this case, there is but one conclusion, and that is that the carelessness and negligence of the decedent was a proximate cause of his injury and resultant death. His contributory negligence, under the evidence, is proper for decision as a matter of law, rather than one of fact. For reasons stated, the judgment and order are reversed, with directions to enter judgment in favor of the defendant. Reversed, with directions. Brantly, C. J., and Reynolds, Cooper, and Holloway, JJ., concur. JORDAN V. DECORATIVE CO. (Court of Appeals of New York. March 15, 1921.) 1. MASTER AND SERVANT-STRAIN CAUSING HERNIA HELD "ACCIDENTAL INJURY" WITHIN COMPENSATION LAW. Where a servant lifting a box weighing 700 pounds or more strained his left side and hernia resulted, there was an "accidental injury" within the meaning of Workman's Compensation Law, § 3, subd. 7. (For other cases, see Master and Servant, Dec. Dig. § 373.) (For other definitions, see Words and Phrases, First and second Series, Accident-Accidental.) 2. MASTER AND SERVANT-FAILURE TO FIND WORK DUE TO BUSINESS CONDITIONS NOT GROUND FOR COMPENSATION. Failure to find work is no ground for compensation under Workmen's Compensation Law, if the failure has its origin in general business conditions and slackness of the demand for labor. (For other cases. see Master and Servant, Dec Dig. § 385[1].) ΤΟ 3. MASTER AND SERVANT-EVIDENCE INSUFFIENT SHOW COMPENSATION CLAIMANT'S INABILITY TO OBTAIN WORK. Evidence held not to warrant finding that compensation claimant could not obtain employment during a certain period by reason of his injuries, having left work paying the same wages as he had received prior to injury without explanation. (For other cases, see Master and Servant, Dec. Dig. § 405[6].) Chase, J., dissenting. Appeal from Supreme Court, Appellate Division, Third Department. Proceeding under the Workmen's Compensation Act to obtain compensation for personal injuries by Augustus Jordan, opposed, by the Decorative Company, the employer, and the Traveler's Insurance Company, insurance carrier. From an order of the Appellate Division of the Supreme Court for the Third Department (194 App. Div. 927, 184 N. Y. Supp. 758) affirming by a divided court an award of the State Industrial Commission, the employer and insurance carrier appeal. Order of Appellate Division and award of Industrial Commission reversed, and rehearing ordered. E. C. Sherwood, of New York City, Clarence S. Zipp, of Hartford, Conn., and Benjamin C. Loder, of New York City, for appellants. Charles D. Newton, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondent. CARDOZO, J. [1] The claimant, while lifting a box of clay weighing 700 pounds or more, strained his left side, and hernia resulted. There is no doubt that this was an "accidental injury." within the meaning of the statute. Workmen's Compensation Law, § 3, subd. 7 (Consol. Laws, c. 67). Matter of Alpert v. Powers, 223 N. Y. 97, 119 N. E. 229, holds nothing to the contrary. In that case there was no finding of any causal relation between the strain and the rupture. Here, the causal relation is found and proved. In such conditions, our ruling in Matter of Veneroni v. Bausch & Lomb Optical Co., 229 N. Y. 628, 129 N. E. 935, sustains the right to compensation. The ruling is in accord with the decisions in other jurisdictions. Fenton v: Thorley & Co., 1903, A. C. 443, 448; Clover, Clayton & Co. v. Hughes, 1910, A. C. 242. The question remains whether the award should be vacated as excessive. The claimant suffered the rupture on April 19, 1919. He remained in the service of the same employer till May 8 of the same year, when he was discharged. There is evidence that his capacity for heavy work had been impaired, if not destroyed. Light work he could do as efficiently and readily as before. Follolwing his discharge on May 8, he was idle till June 1, when he went to work for the Race Track Association, receiving very soon the same wages as before the accident. His duty was to rake the lawn and do general work about the grounds. In that service, he remained till August 2 of the same year. There is evidence, not contradicted, that he could have remained longer, and at the same wages, if he had been willing to serve as watchman. His duty as watchman would have been to sit at the gate and keep intruders off the track. From August 2 to October 4 he was idle again. He got a job on October 4, a few days before the hearing. He testifies in general terms that in the weeks when he was idle he looked for work and found none. He offers neither denial nor explanation of his refusal to accept work which had been tendered. Compensation, if due at all, is to be measured by a prescribed percentage of "the difference between his average weekly wages and his wage earning capacity thereafter in the |