¶1When this case was last before us, the defendants’ exceptions were sustained, on the ground that the evidence failed to show that the plaintiff was in the exercise of due care. Murphy v. Webster, 151 Mass. 121. At the subsequent trial in the Superior Court, the judge ruled that the plaintiff was not entitled to recover ; and the case comes before us on a full report of so much of the evidence as relates to the question of due care on the part of the plaintiff.
¶2We are unable to see how the evidence in this respect differs in any material way from the evidence which was before *49presented to us. The evidence shows that the shipping-rod, although within the elevator well, was outside of the line of passage of the elevator car.
¶3The plaintiff testified that, when he stood on the lower floor of the building, the elevator car being on the floor above, he took hold of the shipping-rod and shoved it up, to bring the elevator down; that it did not come; that he shoved again with the same result; that he shoved the third time, and it came down on top of him. He further testified that he was first struck on the upper part of his arms, and one leg was broken both above and below the knee.
¶4No necessity whatever appears for his putting any part of his body or of his limbs in the line of the passage of the elevator car, and it is obvious that his arms could not have been struck as they were if they had not been in a place where he had no occasion to put them.
¶5According to the terms of the report, there must be,
¶6Judgment on the verdict.