Christensen v. James S. Hannon, Inc.

Andrews, J. The evidence of the plaintiff shows that Nos. 445 and 447 West Sixteenth street, New York, were adjoining buildings. No 445 was twenty-five feet wide and one hundred feet deep and was separated from No. *207 447 on the first floor by a brick partition. Twenty-five feet back from the street there was an opening through this partition of twelve feet. In the front of 445 were solid doors, shut at the time of the accident, and also a window five or six feet wide. Its floor was of dark cement. At the rear was the shaft of a freight elevator extending half way across the floor space. The inside walls of the shaft were of brick and whitewashed. It opened toward the front and across the opening was a chain to guard the entrance. Some distance up the shaft was a small window. This was made obscure by dirt upon the glass. From it and from the window in front came the only daylight that entered except such as was reflected through the opening in the partition from 447. The result was that at seven A. M., of July 11th, 1918, as no artificial lights were burning, it was very dark toward the rear of 445. The defendant occupied these buildings as a stable. At the time in question its foreman, one Hannon, wished to employ a driver for one of the teams. He saw the plaintiff standing on the street in front and asked him if he wanted to go to work. When the plaintiff assented Hannon said: “ Come on inside and we will get a team of horses.” The two men then entered 447. Of the interior arrangement of the buildings the plaintiff knew nothing. When inside Hannon again said: “Come along and we will go back and take the elevator upstairs as I want to get a piece of harness in the closet.” Hannon leading they walked back to the opening through the partition into 445 and then on toward the elevator. When within three or four feet of it Hannon again spoke to the plaintiff : “ Wait a minute, I want to get that harness.” So speaking he passed on to the right of the opening. The plaintiff stopped as he had been told to do but almost immediately Hannon, who was still in sight, said to him: “All right, go ahead, I will be there in a minute.” The plaintiff knew he was approaching an elevator shaft. He *208 could distinguish the whitewashed walls inside. He made no particular examination to see if the platform was in place. He assumed that it was. In fact it was not nor was the chain before the opening. He took a step or two forward, looking straight ahead, and fell down the shaft. Under these circumstances the Appellate Division has held that as a matter of law the plaintiff was guilty of contributory negligence. It, therefore, reversed the judgment entered upon the verdict of a jury in favor of the plaintiff and dismissed the complaint. In its order, however, the finding of the jury that the plaintiff in fact was not guilty of contributory negligence was also reversed. We are of the opinion that the question of contributory negligence may not here be settled as one of law. It is quite true that if the plaintiff on this occasion had simply walked into the shaft without invitation or without excuse, taking no further care than he says he actually did, he would have been negligent. It was dark. He was not familiar with the building. But he did know the shaft was there. He did know he was about to enter it. He never looked to see that the platform was in place. This was, however, not the entire situation. We have often held, in a variety of circumstances, that an implied or express invitation to enter a dangerous place by one who does or should know whether it can be safely done and who has control of it or of the person invited, may excuse the exercise of that degree of care that might otherwise be required. If a reasonably prudent man might rely upon that invitation, it is generally for the jury to say how far his conduct should be affected by it. An assurance to a moving picture actress that she might safely drop from the limb of a tree (Turner v. Crystal Film Co., 225 N. Y. 268); an invitation to the driver of a pile driver to advance although motion might bring him into contact with an electric wire (Chace Trucking Company v. Richmond L. & R. R. Co., 225 N. Y. 435); the *209 absence of a flagman at a railroad crossing (Elias v. Lehigh Valley R. R. Co., 226 N. Y. 154); the fact that crossing gates were raised (Scaggs v. Prest., etc., D. & H. C. Co., 145 N. Y. 201); the fact that the doors of a passenger elevator stood open (Sackheim v. Pigueron, 215 N. Y. 62, 69), or were opened by an attendant (Tousey v. Roberts, 114 N. Y. 312), these things have all been thought important, not as excusing the exercise of all care but as affecting the amount of care which should, as a matter of law, be exércised. The case before us comes within this principle. Hannon was leading the plaintiff to this elevator so that they might take it to the second floor. He was familiar with the situation. He stopped the plaintiff three or four feet from the opening. Then he sent him forward. Considering the situation it might be said that this was to bid him to enter the shaft. Obeying the instructions the plaintiff took one or two steps at most. He found no guard or chain. If the platform was not in place the city ordinance required their presence. Upon compliance with this ordinance the plaintiff might rely. (Provoost v. Internal. Ry. Co., 151 App. Div. 240; affd., 208 N. Y. 611.) Under all these circumstances it was for the jury and not for the court to say whether further care was required. The judgment of the Appellate Division should be modified so as to reverse the judgment of Trial Term and grant a new trial and as so modified affirmed, with costs to abide the event. His cock, Ch. J., Chase, Cardozo, Pound, McLaughlin and Crane, JJ., concur. Judgment accordingly.