Gray v. Siegel-Cooper Co.

Ingraham, J.: The action was brought to recover the damages caused by the death of the plaintiff’s intestate. The complaint alleges that the defendant was in the possession, management and control of a building on the east side of Sixth avenue, between Eighteenth and Yineteenth streets, in the city of Yew York ; that on or about July 23, 1901, the defendant operated in and in connection with said premises a certain elevator for the purpose of conveying merchandise from the lower floor of its premises to the floors above; that the said elevator, on the 23d day of July, 1901, and for a long time prior thereto, was used by persons having business with the defendant, such as the delivery of merchandise to the defendant. These allegations of the complaint were admitted by the answer. From the evidence it appeared that on July 23, 1901, the deceased came to the defendant’s premises to deliver a load of meat; that the deceased got upon this elevator, went up to the grocery floor and into the butcher’s box ; that a few minutes afterwards he came out and went down upon the elevator to the ground floor; that this [120] was the first time he had been on the defendant’s premises or had used this elevator; that after he came down he, with two butchers in the employ of the defendant, took the meat from the wagon and put it on the elevator, and the two butchers, with' the deceased and the man operating the elevator, got upon the elevator and started to take the meat to the fourth floor; that when they got to the fourth floor the elevator was stopped and the men started to take the meat from the elevator to put it into the butcher’s box ; that while they were taking this meat off the deceased was seen to step back to the rear of the elevator and fall between the wall of the elevator shaft and the elevator, from which he sustained injuries which resulted in his death. This was a freight elevator with an ordinary platform that opened outward upon the ground floor but inward upon the upper floors, and there was no guard or protection on the outer or inner sides. This construction seems to have been necessary, as freight was put upon the elevator from the stieet, while to unload the elevator upon the upper floors it was necessary that the elevator should open toward the interior of the building. It appeared that the floor of the elevator was close to the wall on the ground floor, but that in consequence of the wall being not so thick on the upper floor there was a space between the elevator and the wall on the fourth floor at which these goods were removed of about ten and a half inches, and it is through this space that the intestate fell. The evidence is that when the door out to the fourth floor was open the elevator was brightly lighted; that there was a large skylight over the elevator shaft, and when the door was open there was a large window right beside it; a policeman who examined the elevator on the day of the accident said that with the door shut it was dark, but that it was not too dark to see the opening; that with the door shut he could see it without trouble. The witnesses for the defendant testified that it was brightly lighted, and there is nothing to explain the accident except that the deceased stepped into this space and fell. This space between the elevator and the building was but ten and a half inches wide, and it is difficult to see how a man could fall through such a space without catching on the sides. As a matter of fact, he did fall, and the question to be determined is whether there was any evidence to justify a finding of the jury that the defendant was negligent or that the deceased was free from con [121] tribntory negligence. There was no claim that the elevator was out of repair; that any responsible officer of the defendant had knowledge of the fact that the persons delivering goods were in the habit of using this elevator. The evidence is that the only persons other than defendant’s employees who ever used this elevator were those connected with the deceased’s employers. The defendant had employed competent men to manage this elevator and transport articles from the street to the various floors of the building, and these employees of the defendant were in charge of the elevator at that time and were performing that work. Just why the deceased went up on the elevator was not disclosed. He did not go at the request of the defendant or any of its employees. The only ground upon which negligence can be claimed is as to the original construction of the elevator, or a failure of the defendant to supply some kind of a barricade or protection to prevent people upon the elevator from falling into this recess between the side wall of the building and the floor of the elevator on the upper floors. It is not alleged that the defendant constructed the elevator or had any relation to it except that it occupied the building and was using it in its business. ¡Nor is there any evidence that any accident had happened in the use of the elevator, or that the defendants could fairly be charged with notice that this condition as it existed was dangerous or that an accident was liable to happen. It was a bright sunny day when the accident happened, about ten o’clock in the morning; the elevator had a sign on it “ For freight only,” and the color of the wall on the east side of the shaft was white ; the floor of the elevator was dry, nothing on it to make it slippery, and no meat had been laid on the floor that morning; that meat was always hung upon racks and not placed upon the floor; there was nothing to cause the deceased to fall; nothing to explain why he went to the back of the elevator. All that we have is that upon this bright morning, in a light place, with the condition that existed perfectly apparent, the deceased for some unexplained reason, without any necessity incident upon the work that he was employed to do, went to the back of the elevator and fell between the elevator Sind' the wall. At the end of the plaintiff’s case and again at the end of all the testimony the defendant moved to dismiss the complaint upon the [122] ground that the plaintiff failed to show negligence on the part of defendant; failed to show freedom from contributory negligence on the part of the plaintiff; failed to prove a cause of action. These motions were denied, to which the defendant excepted. I think the motions should have been granted. As to the defendant’s negligence, it would seem that there was no proof to justify a verdict against it. This elevator was not for passengers, but for freight. There was sufficient light to show that there was a space between the wall and the easterly side of the floor of the elevator. There was nothing to justify the defendant in assuming that any one thus using the elevator would step down into a hole which was perfectly apparent, and which an inspection would have disclosed. In Lafflin v. Buffalo & Southwestern R. R. Co. (106 N. Y. 136) the distance between the station platform and the car at a station on defendant’s road was eleven inches. The plaintiff stepped off the car without looking to see the station platform, and fell. It was held that the defendant was not negligent. In Barrett v. Lake Ontario Beach Imp. Co. (68 App. Div. 601) the authorities are reviewed, and it was held that a platform and railing through which the plaintiff fell was not negligently constructed, and we think that the principle there established, supported as it is by the cases upon which it was based, prevents a recovery in this case. Ho case in this State is cited by the plaintiff which holds that the use of such an elevator justified a finding of negligence. There are citations from text books stating the general rules as to the obligation of those owning or occupying real property to keep the premises in a safe condition so that those rightfully thereon may not be injured; but I cannot see that it is the duty of one using a freight elevator to so construct it that a person using it in transporting freight could not fall off, and this judgment can only be sustained by establishing that proposition, for which there is no authority. Hor was there anything that justified a finding of the jury that the deceased was free from contributory negligence. Here was a perfectly apparent condition which an examination would have disclosed ; but for some unexplained reason the deceased stepped into the space between the elevator and the wall. There was no evidence that he slipped; that the floor was slippery or dangerous; that he looked and fell, or fell without looking; nothing to show [123] that he took any care to prevent the accident. There was, therefore, a failure to prove that the defendant was negligent or that the deceased was free from contributory negligence, and for this reason the complaint should have been dismissed. It follows that the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event. Yak Brunt, P. J., and Patterson, J., concurred; Laughlin and Hatch, JJ., dissented.