McRickard v. Flint

The defendants’ counsel excepted to so much of the charge as states that “ a failure to comply with the provisions of the law of 1874 is prima facie evidence of negligence.” As an abstract proposition, there was no error in the charge. It had reference to the failure to perform the statutory duty unqualified by any circumstances bearing upon the question, and was not necessarily applied to the present case so as to treat the question of negligence of the defendant as one of law. It was a question for the jury, and upon the request of the defendants’ counsel, they were instructed that the plaintiff could not recover unless the jury found that the defendants were negligent in the use of their premises, and that if the condition of the doors and the elevator and its use by the defendants were reasonable, the plaintiff could not recover. The evidence was such as to justify the conclusion that the defendants were chargeable with negligence. And they owed to any person who should lawfully go into the building the duty which the statute imposed upon them to do him no injury by their negligence in that respect. That duty they owed to the plaintiff, who went to the premises for alegitimate business purpose. The statute is a salutary one, to require, the owners or occupants of business places in the city to guard so far as required by it, against danger of personal injury to those lawfully there and to which they otherwise might be exposed. Its purpose was to provide against personal peril, and it may be assumed that the legislature was advised that such provision was essential to such protection. In view of this statute, the cases cited upon the question of the defendants’ negligence and their duty in that respect, which they owe to others, do not necessarily have application to the present case. But the defendants’ negligence •alone will not support the plaintiff’s recovery. The burden was with him to show that he was free from negligence. And if he failed to make it appear that he was without fault in that respect, the plaintiff was not entitled to recover. It is urged on the part of the defense, that upon the facts as presented by the evidence, the plaintiff must, as a matter of law, be chargeable with contributory negligence. This evidently was the view taken on the first trial, bub on review of that trial the court held otherwise, and reversed the judgment entered upon dismissal of the complaint and granted a new trial. 97 N. Y., 641 . And the reasons given in the opinion of the court, then delivered, were “that the facts proved did not justify the conclusion as matter of law that there was contributory negligence on the part of the plaintiff, or that there was such an absence of evidence upon the point, that a finding of the jury that the plaintiff was free from contributory

negligence could not be allowed to stand.” The plaintiff’s counsel asserts that the case of his client was at least as favorably presented for him by the evidence on the last as on the former trial. While there were some disputed facts, there was but very little conflict in the evidence as to the situation at the time of the accident, and in relation to the circumstances attending it.

The plaintiff went to the building to see one of the defendants on business and entered at the easterly door, and •being informed that the defendant was not then there, but might be in the shipping department, which was adjacent and on the west of the building, the plaintiff went out of the westerly door on to the sidewalk and thence to the place mentioned. Not finding the defendant there, he proceeded to return to and into the building in which he first sought the defendant, and seeing a door partly open, he entered there and stepped into the open elevator hatchway, the depth of which was about twelve feet. The door was between the easterly and westerly doors before-mentioned of the building, and in going to it the plaintiff passed the westerly one. At the place where he then entered was a folding door. It was not the usual place of entry into the building, and that door.was usually kept closed during the day except when open for the purposes of access to the elevator from the street. In front of this door was one step from the walk, and the next was the threshold or saddle of the door sill, and from the center of the latter to the elevator shaft was one foot and seven inches, and from the outer edge of the first step was less than three feet, so that after the plaintiff had stepped on to the door sill, his next step may have taken him into the shaft. When he approached the door, he was going east. The east half of the folding door was partly open, and he pushed it open some further when he entered. There was no warning notice there. The folding door was of solid wood and of considerable height, and above it was a glass window. This was between twelve and one o’clock in the afternoon, and within the room it was light If the plaintiff had stopped and looked about when he entered the door, he evidently could have seen the situation. Because he failed to do this it is contended that he was necessarily chargeable with contributory negligence. The plaintiff, probably, did not stop after he proceeded to enter. He says he supposed this was the main entrance of the building; that the hatchway was not within his view when he went on to the step; that as he entered he saw the saddle of the door sill and floor, and supposed the latter was continuous; that he then raised his eyes and glanced into the store-room and salesroom through a glass partition, and that although it was

light there he saw no elevator shafting, aucl that the door obscured the hole, but exposed sufficient flooring to satisfy him that it was continuous. These are mainly the circumstances of the occurrence as represented by the evidence.

It was the duty of the plaintiff to exercise reasonable care _ and to take observation of that which was apparent to view as he proceeded. But what is due care and diligence depends upon circumstances. The same precautionary means requisite to relieve a party from the charge of negligence when he approaches known places of clanger, or places where danger may be apprehended, may not be required of him when he has no occasion to suppose that danger may be encountered. It cannot be said that the plaintiff upon this occasion was required to apprehend that there might be an exposed elevator pit in the place where he entered. The fact that the door was partly open enabled him to suppose it was a suitable place of entry. So that the question is whether not seeing it was necessarily negligence on his part. That is not so unless he was required to stop and take careful observation of the-place when he entered upon the threslihold and before he proceeded to further enter into the room. He says he looked, saw no hole, and one step took him into it. This question of contributory negligence may be considered in view of the influences which ordinarily control human action. That is, to some extent, governed by appearances, and is not always the consequence of failure to exercise the greatest prudence or to make use of the best judgment. Here the plaintiff in stepping into the room, the first step he took after his entry on to the threshold at a partially open door, received-the injury from a cause which he had no apparent reason to expect, and which he failed to see until too late to avoid the calamity. And the fact that the difference in time between his entrance into the room and his fall was only momentary, is a circumstance bearing upon his opportunity to see the danger, and probably may have had some consideration upon the question of contributory negligence. The conclusion of the jury, that he was free from that imputation, was permitted by the evidence.

"While it was not competent for the plaintiff to give evidence. for the purpose of proving any changes about the premises made subsequently to the accident, the motion to strike out evidence on that subject was not error, because it was not received for such purpose, but was admitted solely to show, as claimed, that the drawings or diagrams of the premises presented by the defendants on the trial did not correctly represent the situation as it was at Lho

time in question. There seems to have been no error in the rulings at the trial.

The judgment should be affirmed.

All concur.