Racine v. Morris

This is a statutory action to recover for the death of Louis T. Racine, who was a member of the police force of the city of New York, and while in the performance of duty as a patrolman received injuries at about 7:25 o’clock in the evening of. the 8th day of December, 1906, through the alleged negligence of the appellants, from which he died. The decedent was patrolling on his beat, which embraced the premises No. 10 Vestry street, and discovered a door leading from the sidewalk into the building ajar, and summoned the patrolman on an adjoining beat, and the two proceeded to search the premises and to secure the door, pursuant to general instructions given to them by their superior officers. The two officers approached the door; the decedent being a few feet in advance of his fellow officer. The door was well ajar. The decedent stepped up to it, pushed it further open, and stepped inside, and, as he did so, he fell out of sight of his companion. The building was dark, and, while this appeared to be a passageway from the street into the building, it was in fact an opening from the sidewalk into an unguarded elevator shaft. The elevator at the time was at the floor above, and the gate at the street floor, instead of being down and barring the entrance, was suspended some distance above the floor and supported by a nail in a post at one corner of the elevator. There were two doors opening onto the street extending the whole width of the shaft of the elevator, one of which folded up in two parts, leading from the elevator onto the sidewalk and evidently extending down to the platform underneath or floor of the building. They were very close to the front of the building. There was a space between the opening into the elevator shaft and the doors when closed of two feet, and evidently the floor or platform which extended to the street under the doors extended back to the elevator shaft. The appellants were in possession of the entire building under a lease for three yeafs, made on the 1st day of May, 1906, and were conducting thereon the business of wholesale dealers in glass. Glass was loaded onto the elevator from trucks in the street through these doors, and was taken to the different stories of the building, and likewise was removed from the building in the sanie manner. The accident occurred after business hours, and after the employes of the appellants had departed for the day. It is very doubtful, I think, whether the appellants violated any duty which they owed the decedent at common law. He was neither in their employ nor was he on the premises by their invitation, at least not an express invitation. It was his duty as a member of the police force to protect life and property (section 315, Greater New York Charter [Laws 1901, c. 466]), and it appears that he and his fellow officers had received general instructions from their superior officers with respect to premises where doors

The general rule of law now well settled in this jurisdiction is that the owner of private premises owes no duty of active vigilance to a mere licensee upon his premises without invitation express or implied,- and does not owe to him the duty of even ordinary care with respect to the condition of his premises or buildings or other structures or machinery thereon. Nicholson v. Erie R. R. Co., 41 N. Y. 525 ; Sutton v. N. Y. C. & H. R. R. Co., 66 N. Y. 243 ; Larmore v. Crown Point Iron Co., 101 N. Y. 391 , 4 N. E. 752 , 54 Am. Rep. 718 ; Sterger v. Van Sicklen, 132 N. Y. 499 , 30 N. E. 987 , 16 L. R. A. 640 , 28 Am. St. Rep. 594 ; Cusick v. Adams, 115 N. Y. 55 , 21 N. E. 673 , 12 Am. St. Rep, 772 ; Victory v. Baker, 67 N. Y. 366 ; Splittorf v. State, 108 N. Y. 205 , 15 N. E. 322 . He does, however, owe the duty to such a licensee, not only to refrain from either intentionally or willfully injuring him while thus lawfully on the premises, but he is liable for personal injuries caused by affirmative acts of negligence on his part or on the part of his employés which result in injury to such licensee. Byrne v. N. Y. Cent. & H. R. R. Co., 104 N. Y. 362 , 10 N. E. 539 , 58 Am. Rep. 512 ; Barry v. N. Y. Cent. & H. R. R. Co., 92 N. Y. 289 , 44 Am. Rep. 377 ; Walsh v. F. R. R. Co., 145 N. Y. 301 , 39 N. E, 1068 , 27 L. R. A. 724 , 45 Am. St. Rep. 615 . Both as to such licensees and even as to those who are innocently But technically trespassers upon his premises, he owes the further duty to refrain from setting pitfalls, spring guns, or traps, or having machines inherently dangerous or vicious animals loose upon the premises, as the law values human life too highly to permit a property owner to thus endanger the lives of persons lawfully or accidentally upon his premises, even though the purpose of the owner was to protect his property against trespassers. Larmore v. Crown Point Iron Co., supra. It is quite clear, I think, that under none of these rules of law is a liability established against these appellants. Another rule of law is that no person is at liberty to construct, maintain, or suffer a dangerous excavation on his premises in close- proximity to a public way by which those lawfully using the public way and in the exercise of proper care may receive injuries therefrom (Beck v. Carter, 68 N. Y. 283 , 23 Am. Rep. 175 ), but, as the officer did not go upon the premises accidentally while in the exercise of his right to use the public way, it is difficult to perceive how there would be a liability arising upon this theory because a duty may only be invoked by those for whom it is enjoined. ■ Harty v. Central

This leads to the conclusion, therefore, that this action cannot be sustained upon the principles of the common law. I am of opinion, however, that it can be sustained upon the theory that the Legislature by authorizing the enactment of the Building Code by the board of aldermen of the city of New York and by subsequently ratifying the provisions thereof has added to the duties which the defendant owed to the decedent at common law a further duty which they violated and upon which negligence may be predicated. Section 95 of the Building Code provides as follows:

“In any building in which there shall be any hoistway or freight elevator or wellhole not inclosed in walls constructed of brick or other fireproof material and provided with fireproof doors, the openings thereof through and upon each floor of said building, shall be provided with and protected by a substantial guard or gate and with such good and sufficient trapdoors as may be directed and approved by the department of buildings; and when in the opinion of the commissioner of buildings having jurisdiction, automatic trapdoors are required to the floor openings of any uninclosed freight elevator, the same shall be constructed so as to form a substantial floor surface when closed and so arranged as to open and close by the action of the elevator in its passage either ascending or descending. The said commissioner of buildings shall have exclusive power and authority to require the openings of hoistways or hoistway shafts, elevators and wellholes in buildings to be inclosed or secured by trapdoors, guards, or gates and railings. Such guards or gates shall be kept closed at all times, except when in actual use, and the trapdoors shall be closed at the close of the business of each day by the occupant or occupants of the building having the use or control of the same.” . , .

Such are the actions for damages caused by a failure to perform the statutory duty of erecting and maintaining fire escapes (Willy v. Mulledy, 78 N. Y. 310 , 34 Am. Rep. 536 ; Pauley v. S. G. & L. Co., 131 N. Y. 90 , 39 N. E. 999 , 15 L. R. A. 194 ; Huda v. American Glucose Co., 154 N. Y. 474 , 48 N. E. 897 , 40 L. R. A. 411 ), failure to conform to the requirements of law with respect- to guarding elevator shafts (McRickard v. Flint, 114 N. Y. 333 , 31 N. E. 153 ) and the violation of a duty imposed by the labor law and the employer’s liability act (Consol. Laws, c. 31) so called. The only apparent exceptions to this rule, arise on the construction of the statutes with respect to the persons for whose benefit the same were enacted.' Such are the

I am of opinion, therefore, that the judgment is right and should be affirmed.

INGRAHAM, P. J., and CLARKE, J., concur.

This is an appeal. from a judgment for damages for the death of plaintiff’s intestate, who was a policeman in the city of New York. The appellants are the lessees ánd occupants of a building known as- No. 10 Vestry street, in which they carried on a wholesale glass business. At .one corner of this building there was an elevator shaft, entirely separated and inclosed from the rest of the building by wooden and glass partitions, extending from the basement to the top floor, and in which there were doors leading from the shaft to the several floors' of the building. At the street level there were doors the whole width of the shaft leading from it to Vestry street, but not otherwise furnishing access to the interior of the building. The elevator was used for the purpose of receiving and shipping freight, and transporting it from one floor of the warehouse to another. On December 8, 1906, when patrolling his beat, between 7 and 8 o’clock in the evening, the deceased noticed that one of the doors leading from the street into the elevator shaft was ajar. He apparently did not know where the door led, and doubtless supposed that- it led into the building, for he pushed the door open and stepped .through it, being precipitated to the bottom of the shaft, and receiving the injuries from which he died. At this time the building was vacant and unlighted, and had been for some hours. The elevator car or platform was standing at the second story; the power, which was furnished from outside, having been turned off. A gate had been provided to guard the entrance to the shaft from Vestry street when the doors were opened. This gate was so arranged that it could be pushed up, out of the way, and, when so pushed up, was kept in place by a wire nail stuck into the woodwork, which could be easily removed when it was desired to lower the gate. At the time of the accident the gate was pushed up and secured. There is no question, as to how the accident happened, nor as to the reasonableness of the verdict; the only question being whether upon the undisputed facts the plaintiff is entitled to recover.

It must be conceded that, under the circumstances, no liability would attach to the defendants at common law. Admitting that plaintiff was acting in the line of his duty and therefore was not a mere trespasser, it cannot be said that he went upon the premises by invitation, or that he was, at the best, more than a licensee. Cooley on Torts (3d Ed.) p. 1268; Baker v. Otis El. Co., 78 App. Div. 513 , 79 N. Y. Supp. 663 ; Eckes v. Stetler, 98 App. Div. 76 , 90 N. Y. Supp. 473 . The plaintiff insists, however, that, even if the common law imposed no duty upon the owner of the premises to keep them safe for the benefit of mere licensees, yet the Building Code of the city of New York does impose such an obligation, and that its violation justifies the present judgment.

“Sec. 95. In any building in which there shall be any hoistway or freight elevator or .wellhole not inclosed in walls constructed of brick or other fireproof material and provided with fireproof doors, the openings thereof through and upon each floor of said building, shall be provided with and protected by a substantial guard or gate and with such good and sufficient trapdoors as may be directed and approved by the department of buildings; and when in the opinion of the commissioner of buildings having jurisdiction, automatic trapdoors are required to the floor openings of any uninclosed freight elevator, the same shall be constructed so as to form a substantial floor surface when closed and so arranged so as to open and close by the action of the elevator in its passage either ascending or descending. The said commissioner of buildings shall have exclusive power and authority to require the openings of hoistways or hoistway shafts, elevators and wellholes in buildings to be inclosed or secured by trapdoors, guards or gates and railings. Such guards or. gates shall be kept closed at all times, except when in actual use, and the trapdoors shall be closed at the close of the business of each day by the occupant or occupants of the building having the use or control of the same.”

This ordinance was adopted by the board of aldermen pursuant .to legislative authority. Chapter 378, Laws 1897, § 647; chapter 466, Laws 1901, ■§ 407; chapter 628, Laws 1904, § 2. Similar provisions enacted in prior acts of the Legislature were repealed (chapter 547, Laws 1874, § 5; chapter 410, Laws 1882; ■§ 453; chapter 275, Laws 1892, § 28)j and the Building Code thereafter had the same force within the corporate limits of the city as a statute passed by the Legislature. City of New York v. Trustees, 85 App. Div. 355 , 83 N. Y. Supp. 442 , affirmed on opinion below 180 N. Y. 527 , 72 N. E. 1140 ; Kenney v. Brooklyn Bridge Stores Co., 121 App. Div. 684 , 106 N. Y. Supp. 421 . It is, however, not a statute, but tnerely a municipal ordinance. Schnair & Co. v. Grigsby, 132 App. Div. 854 , 117 N. Y. Supp. 455 . It is not necessary to consider whether a municipality may by ordinance create a right of action between individuals, because the ordinance in question does not purport or undertake to do so. It imposes a duty upon the occupants and owners of certain premises, and specifies the penalties that shall attach in case .of violation. "See sections 156-158-, Building Code. It is well settled, of course, that, where a duty exists irrespective of the ordinance, the violation of an ordinance enacted to regulate the performance of that duty is competent evidence of negligence in such performance. The question at issue therefore turns upon whether ór not, irrespective of the ordinance, the. appellants owed to deceased any duty of safeguarding their premises. That question seems to be answered so far as" this department is concerned by Eckes v. Stetler, supra. In that case a fireman who was upon the defendant’s premises in the lawful performance of his duty of extinguishing fires was injured in consequence of the failure of the defendants to comply with a statute (chapter 410, Laws 1882', § 453) requiring all hoistways, wellholes, trapdoors, and iron shutters to be closed at the completion of the business of each day. The statute expressly provided for compensation to be paid in case any officer of the fire department should be killed or injured in consequence of a failure to obey the requirement of the act, siich compensation to be récovered “in an action instituted by said board” (of fire commissioners). The plaintiff elected to sue in his own behalf, and" not "through

There are undoubtedly cases in which the failure to observe a law or ordinance similar to the ordinance invoked herein has been deemed to be an important element of a right to recover, but in each one, at least so far as concerns this state, there has been, back of the violated law, a duty to the person injured, and the violation of the law has been considered evidence of thé failure to perform that duty. In McRickard v. Flint, 114 N. Y. 222 , 21 N. E. 153 , the plaintiff was upon defendants’ premises pursuant to an implied invitation, coming there during' business hours upon a matter of business. To him the defendants owed a common-law duty of care, and the violation of the statute was evidence of a failure to observe that duty. So in Pauley v. Steam Gauge & Lantern Co., 131 N. Y. 90 , 29 N. E. 999 , 15 L. R. A. 194 , the defendant owed to its employes the duty of furnishing reasonably safe means of egress, and the requirement that fire escapes should be provided was one regulating the performance of that common-law duty, and its disobedience constituted negligence in that regard. The same distinction is to be observed in all of the cases relied upon by the plaintiff. From a comparison of the cases cited upon both briefs, we are impelled to concur with the proposition contended for by the appellants that the violation of the ordinance (assuming it to have all the force of a statute) will furnish evidence of the violation of a common-law duty, but that it is the neglect of such duty, and not the violation of the ordinance, which gives rise to the cause of action. Consequently, if there be no common-law duty, no cause of action can he predicated upon the violation of the ordinance.

It follows that the judgment and order should be reversed and a mew trial granted, with costs to the appellants to abide the event.

MILLER, J., concurs.