Cholet v. City of Syracuse

Judgment and order reversed, and new trial ordered, with costs to the appellant to abide event upon questions of law only; the facts having been examined and no error found therein. Held, that as matter of law the evidence failed to establish actionable negligence on the part of defendant or freedom from contributory negligence on the part of the deceased.

I dissent. This action was. brought to recover damages for the death of plaintiff’s intestate and husband alleged to have been caused by the negligence of the defendant. Said intestate was found dead at the bottom of an,elevator shaft in the city hall owned and occupied by_ the defendant. Nobody saw the accident. It is claimed by the plaintiff that while employed by the defendant for the purpose of repairing the elevator running in said shaft he attempted to enter said elevator, and that the latter, without his knowledge, having been moved from the floor where he had left it, he was precipitated into the shaft and killed. Under her notice of claim and under the instructions given by the learned trial justice to the jury, the plaintiff is limited to the sole complaint that defendant was negligent in not furnishing such sufficient light in and around the elevator and elevator shaft as would have enabled intestate to discover that the elevator had been moved. While the evidence is meager at certain points, .1 still think that it furnished a sufficient basis to permit and sustain the verdict of the jury, and that the judgment should be affirmed. The jury were entitled amongst others to find the following facts as existing at and before the time of the accident: The defendant maintained a building known as its city hall which in part was occupied by various municipal offices and departments. This building was three or more stories in height. Its length ran in a general northerly and southerly direction. The basement floor, with which we are specially concerned, was traversed in its center from north to south by a long hall. This hall was intersected by another one running from Market street upon the easterly side to Montgomery street upon the westerly side. The elevator shaft in question was located a few feet from the southeasterly corner of this intersection. In this shaft moved an elevator whose construction requires no particular attention and in front of the elevator opening upon each floor was a grill ironwork and sliding door with a catch, which, when in order, could not be opened from the outside of the shaft except with a key. Three lights were located in the long hall above mentioned, one at each end, and one at the intersection formed by the side hall. These lights were in the ceiling, and in each case consisted of a cluster of three incandescent lights inclosed in a large clouded or frosted globe 15 inches in diameter and 11 feet and 6 inches from the floor. The hall received no

The inferences which the jury evidently drew from these facts were that, after Cholet came from the room where he was with the witness McKeever looking for paper, he returned to the elevator which he was engaged in repairing; that he opened the door expecting to find" and enter the elevator where he left it; that, owing to the defects in the latch and the custom which people had of entering and using the elevator when not managed by the boy in charge thereof, said elevator had been moved from the place where it was left; that as a result of the darkness Cholet did not discover this and stepped into the open shaft, falling and receiving injuries which caused his death. It is strenuously urged by the learned counsel for the appellant that these are not legal or legitimate inferences, but are simply speculations unsustained by any sufficient proof; that other speculations might as well be adopted, as,. for instance, that the deceased opened the door, found the elevator gone, reached for the rope to pull it back, and lost his balance, falling into the well. As must be conceded, the evidence is not abundant or .direct by which it may be demonstrated that the accident occurred in the manner claimed by the plaintiff. But that is a condition which is liable to confront the court in the decision of every case where an accident has occurred without eyewitnesses, and it is well settled that in such a case plaintiff may establish his cause of action by proof of surrounding facts and circumstances, though they appear somewhat remote and inconclusive, provided only they authorize the necessary inferences. Applying such rule to this case, it seems to me that the jury were permitted to find as they did upon the evidence which was adduced. The intestate had been called specially to repair this elevator. He had already entered the elevator for the purpose of performing this duty, and had brought it to the basement floor, where he had left it stationary and with the door locked for the temporary purpose of procuring some supply and manifestly with the intention, in accordance with the duty and instructions which had been imposed upon

Passing by the question of defendant’s negligence as a direct cause of intestate’s fall and death, defendant’s counsel argues the companion one of intestate’s freedom from contributory negligence, strenuously insisting that plaintiff has not established in her favor that essential proposition. Here again we are to apply to the decision of this contention rules which are reasonable and which are adapted to the inherent conditions of the case. We cannot know from the injured party what he did before meeting with his accident, or even what motives, intentions, and beliefs governed such conduct. Neither is there any other person who can describe even partially what occurred just before the intestate fell, and plaintiff’s only recourse is to establish surrounding facts and circumstances from which a jury may properly infer that the deceased exercised reasonable care. As was said in Tolman v. Syracuse. Binghamton & N. Y. R. R. Co., 98 N. Y. 198 -203, 50 Am. Rep. 649 : “If, in such case, the surrounding facts and circumstances reasonably indicate or tend to establish that the accident might have occurred without negligence of the deceased, that inference becomes possible, in addition to that which involves a careless or willful disregard of personal safety, and so a question of fact may arise to be solved by a jury and require a choice between possible, but divergent, inferences.” And again, in Schafer v. The Mayor, 154 N. Y. 466 -472, 48 N. E. 749 , 751, it was said: “The plaintiff’s intestate was bound to exercise reasonable care; but if, owing to the circumstances, the evidence of care was weak, it does not follow that it was not for the consideration of the jury. If there was any evidence upon the subject, the case should have been submitted to them for decision.” I think that the facts established by plaintiff’s evidence in the case warranted the deduction by the jury that her intestate was not guilty of carelessness, and that the occurrence of the accident was entirely consistent with the exercise of reasonable care upon his part. If I have estimated aright the testimony given by the witnesses McKeever and Sparks, the jury might say that after finishing his errand in the room at the end of the hall the intestate shortly returned to the elevator for the purpose of taking charge of it and completing his repairs. He had left it a few moments before at the landing with the door permitting approach to it closed and locked. He had no knowledge of the defect in this lock, or that any person was liable to come along and move the elevator away to some other place. As he unlocked and opened the door he had a right to assume that the elevator would be where he had left it, and that he might safely step from the landing into it. Under such circumstances it was not incumbent upon plaintiff to show by her evidence that the intestate, after having opened the door, looked to see if the elevator was there before attempting to step into it. Elevators do not of themselves move away, and he had no knowledge that some human agency was liable to be applied to it to that end. The jury could say that he had a right to believe that the conditions which he had left a few moments before would continue, and if they had continued he would not have met with his accident. Neither can it be said as a matter of law that in the dim light surrounding the elevator shaft the intestate ought to have seen that the elevator was gone. It could be fairly said upon all the evidence that a person approaching, as the intestate did, and allowed to assume that the elevator was there, might reasonably step into the shaft before discovering its absence, and that he would not be guilty of negligence in so' doing. It is called to our attention that the witness McKeever saw the elevator moving up the shaft just before it is assumed that the accident happened to intestate, and argued that therefore intestate should have noticed its absence. But a jury might say that McKeever, who apparently was quite familiar with the building, might notice the presence of the elevator in motion up the shaft, while intestate, expecting to find it stationary at the floor, would not detect its absence. So, upon this question I think that plaintiff established a case for the jury within Jones v. N. Y. C. & H. R. R. R. Co., 28 Hun, 304 , supra ; Schafer v. Mayor, 154 N. Y. 466 , 48 N.

The defendant urges, as a defense superior to and independent of these questions of negligence and contributory negligence, that it maintained the city hall in the exercise of a purely governmental function, and that therefore it assumed no duty to the plaintiff, a violation of which would impose liability upon it. in this action. I cannot, however, concur in this view. Of course it is well settled that a municipal corporation may act in two capacities; one governmental, as the agent of the state in the performance of those duties which devolve primarily upon it in the exercise of its sovereign power of goverment .for the common benefit of all of the people of the State; the other, municipal, in the performance of duties voluntarily assumed and exercised in respect to its local or special interests for the particular benefit and advantage of the locality and its inhabitants. Maxmilian v. Mayor, 62 N. Y. 160 , 20 Am. Rep. 468 ; Eddy v. Village of Ellicottville, 35 App. Div. 256 , 54 N. Y. Supp. 800 . While acting in the former capacity it could not be made liable for an accident of the nature of that proven in this case, whereas, while acting in the latter capacity it might be made subject to the operation of those principles which have been invoked against it. While the courts in some other states may have gone to the extent of holding that the maintenance and operation of a city hall would be incidental to the discharge by a municipality of its governmental functions, no authority to that effect has been called to our attention from the decisions in this state. Without a lengthy discussion of the subject, it seems clear that the building wherein the accident happened was maintained by the defendant in whole or part for its use, convenience, and benefit in the conduct and discharge of those municipal obligations and duties imposed or assumed with respect to its special and local interests, and that therefore it may be held liable for negligence in the premises. Eddy v. Village of Ellicottville, 35 App. Div. 256 , 54 N. Y. Supp. 800 ; Quill v. Mayor, 36 App. Div. 476 , 55 N. Y. Supp. 889 ; Galvin v. Mayor, 112 N. Y. 223 , 19 N. E. 675 . Some other questions have been raised upon the appeal which it is not necessary to consider specifically. In my opinion the plaintiff produced evidence which. entitled her to the verdict that was awarded by the jury, and the judgment should be affirmed.

SPRING, J., concurs in this dissent.