Morman v. Rochester Machine Screw Co.

Adams, P. J.: •When this case (sub noon. Cogswell v. Rochester Machioie Screw Co.) was here upon appeal from an order granting the defendant a new trial (39 App. Div. 223) we affirmed the order appealed from upon the ground that the evidence did not show that the defendant’s-employee, to whose negligence the accident which caused the plaintiff’s injury was attributed, was acting within the scope of his authority when he assumed to conduct the plaintiff to the elevator. Upon the last trial, however, this defect was remedied and evidence was given by a number of witnesses which tended to show that although the elevator was designed primarily and employed principally to transfer freight to and from the upper floors of the building, it was, nevertheless, used at times for the conveyance of passengers, and under circumstances which might perhaps have sustained a finding that not only was it thus used with the knowledge and consent of the defendant, but that Smith, the defendant’s employee, was impliedly authorized to place it at the disposal of passengers who had occasion to visit the occupants of the upper stories. This being the case, it necessarily follows that if Smith was guilty of negligence upon the occasion iñ question, his negligence was chargeable to the defendant. ' Upon the former appeal we took occasion to say that, for the purposes of that review, the verdict of the jury must be regarded as [499] establishing the fact “ that Smith’s negligence, unaided by any concurring negligence upon the part of the plaintiff, caused the injuries of which the latter complains; ” which was, of course, equivalent to saying that as to the two essential propositions which are always present in every action of negligence, an issue of fact was raised in the present case which had been conclusively settled by the verdict of the jury; and inasmuch as upon the second trial the evidence, so far as that issue is concerned, was practically the same as upon the tirst, we are unable to assign any satisfactory reason foi sustaining the trial court in withdrawing the case from the consideration of the jury. We do not deem it necessary in this connection to detail with any particularity the facts of the case, inasmuch as they are quite fully set forth in the statement accompanying our former opinion (39 App. Div. 223). Suffice it to say that the defendant’s elevator was located at the end of the hall in the northwest corner of the building ; that this hall, according to the plaintiff’s story, was quite dark ; that upon inquiring at the defendant’s office where she could find a Mr. Hutchinson, one of the defendant’s tenants, she was informed by Mr. Smith that his office or room was upon the second floor; that Smith thereupon volunteered to show her to the elevator ; that she followed Smith to the end of the hall; that Smith, upon reaching the elevator, opened the door and then stepped back and turned his face towards the plaintiff, and waited, and that she thereupon, without looking to see that the car was in position, stepped through the door and fell to the bottom of the well. It is not to be denied that the plaintiff, even taking her own version of the occurrence, did not appear to take much thought for her own safety when she accepted what she would have us believe was Smith’s invitation to enter the elevator, and it may be that a jury will so Arid when the question is submitted to them ; but accepting her evidence as truthful and trustworthy, how can we say, as matter of law, that Smith did not, by implication, assure her that the elevator car was ready for her, or that she was not justified in acting upon such assurance without first looking to see whether or not she might do so without encountering any danger ? An elevator in a building which is used for the carriage of passengers is not to be regarded as a place of danger, to be approached [500] with great caution, like a railroad crossing, but, on the contrary, as has been said in a similar case : “ It may be assumed, when the door (of such a conveyance) is thrown open by an attendant, to be a place which may be safely entered without stopping to look, listen or make a special examination.” (Tousey v. Roberts, 114 N. Y. 312.) As to whether or not, under the circumstances of the case at bar, it can. be said that Smith did, in fact, assure the plaintiff that the elevator was in readiness for her, or that with such assurance as she did receive she was warranted in stepping into the well without taking any precaution whatever to ascertain that she might do so in safety, we, of course, express no opinion. We simply say that thete are questions which, like the one discussed upon the farmer appeal, must now be submitted to the jury, and to that forum we relegate them. (Tousey v. Roberts, supra ; McRickard v. Flint, 114 N. Y. 222; Simmons v. Peters, 85 Hun, 93.) McLennan and Spring, JJ., concurred; Williams and Laughlin, JJ., dissented. Plaintiff’s exceptions sustained and motion for a new trial granted, with costs to plaintiff to abide event.