Tousey v. Roberts — 23 N.Y. St. Rep. 223

Majority

p. 223

Rose Tousey, Resp’t, v. Lewis Roberts, App’lt.^[1]

(Court of Appeals, Second Division,

Filed May 3, 1889.)

Headnote

1. Negligence—Elevator accident—Due care—Liability of employer FOR ACT OF EMPLOYEE.

The defendant owned an apartment house, in which plaintiff’s husband had a lease of an apartment on the fourth floor. The door through which the elevator was entered was on the ground floor. On the evening when the accident happened, the plaintiff, accompanied by a lady, entered the hallway, and as she approached the elevator, the door was thrown open by a boy named Reilly, a younger brother of the person employed to run the elevator, and the car being above, she fell to the bottom of the shaft, sustaining the injuries complained of. Held, that as the defendant assumed to operate the elevator for the benefit of his tenants, he was required to exercise due care for their safety, and is liable to them for the negligence of his employees in operating the elevator.

2. Same—Evidence—When person presumed to be employee.

Evidence was given on the part of the plaintiff that the boy Reilly had run the elevator on many occasions before. Held, sufficient to sustain a finding that plaintiff was justified in assuming that he was employed by defendant in that service, and that this practice was known to defendant’s son, who had general supervision of the building, and to the engineer, who had charge of the building and the running of the elevators.

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3. Same—Elevator—Presumption or sarety or.

An elevator for the carriage of persons is not like a railroad crossing at a highway, supposed to be a place of danger, but it may be assumed when a door 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.

4. Exceptions—When not available.

An exception which does not point out wherein counsel conceive the court to have erred, is unavailing.

Appeal from a judgment of the general term of the superior court of the city of New York affirming a judgment entered on a verdict for $2,500 damages.

William H. Townley, for plaintiff, respondent; Norman T. M. Melliss, for defendant, appellant.

In 1883, the defendant owned a house on West Fifty-sixth street, in the city of New York, known ,as “ The Winfield,” which was divided into, apartments. The plaintiff’s husband had a written lease from the defendant of an apartment on the fourth floor, in which the plaintiff and her husband dwelt. The usual mode of going to and from this apartment was by an elevator, which was operated by the defendant for the accommodation of the occupants of the building. The elevator shaft extended seven feet below the ground floor. The door through which the car was entered from this floor wás so constructed and fastened that it could be opened by persons .standing in the hallway. Between six and seven o’clock in the afternoon of May 'T, 1883, the plaintiff, accompanied "by a lady, entered the hallway from the street, walked towards the elevator, and as she approached it the door was thrown open, she passed through, and the car being above she fell to the bottom of the shaft, sustaining external and internal injuries.

This action is for the recovery of the damages sustained, and it is alleged in the complaint (1) that the hallway on the ground floor which led to the elevator was not lighted; (2) that the door through which the car was entered from the hallway was fastened so it could be opened from the hallway; (3) that defendant employed or permitted a boy to run the elevator who negligently opened the door, and thereby invited the plaintiff to pass through it when the car was in the upper part of the shaft.

It was conceded at the trial that at the time of the accident there was no artificial light in the hallway; but whether it was then so dark that a light was required, was a disputed fact. It was also conceded that the door through which the car was entered from the hallway could be opened from the hallway, and that upon the occasion in question it was so opened by a boy by the name of Reilly,

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a younger brother of the person employed by the defendant to run the elevator. Witnesses called by the plaintiff testified that young Reilly had run the elevator on many occasion before the accident; while the witnesses called by the defendant testified that he had never run it. The defendant insisted that the plaintiff contributed to the accident by failing to observe that the car was not in place, urging that if she had looked attentively she could have seen that it was absent, or if she had listened that she could have heard it descending from above.

At the close of the plaintiff’s case, the defendant moved to dismiss the complaint upon the ground that no negligence had been shown that was attributable to the defendant, or to any of his employees; and when both parties rested, the defendant asked the court to direct a verdict in his favor upon the ground above-stated, and upon the further grounds, that young Reilly was not defendant’s employee; and that the plaintiff was guilty of contributory negligence in not looking before she walked through the door.

Both motions were denied, and the defendant excepted. In this there was no error. The defendant assumed to operate the elevator for the benefit of his tenants and he was required to exercise due care for their safety, and was liable to his tenant for the negligence of his employees in operating the elevator. The evidence was sufficient to sustain a finding that young Reilly had run the elevator on so many occasions that the plaintiff was justified in assuming that he was employed by the defendant in that service; and, also, to sustain a finding that this practice of young Reilly was known, or should have been known to the defendant’s son, who had the general supervision of the building, and to the engineer employed in and who superintended the building and the running of the elevators, with power to employ attendants. For their neglect the defendant is liable. And so, also, was the evidence sufficient to justify the jury in inferring that the hallway and elevator should have been lighted. The door to the car of the elevator being-thrown open by a boy who had .been accustomed .to throw it open, it was not, as a matter of law, contributory negligence in the plaintff to pass through the door without stopping to look and listen.

An elevator for the carriage of persons is not like a railroad crossing at a highway, supposed to be a place of danger, to be approached with great caution; but, on the contrary, it may be assumed when the door 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.

The court instructed the jury that there was no evidence that young Reilly was employed by the defendant, and

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then said: “ But though he was not such a servant, it may be a question for you whether the defendant should not have exercised such supervision over the building as to make it impossible for that brother to do acts from which the tenants might have derived the impression that he was-such a servant.” To this the defendant excepted. The court did not go beyond the law in directing the jury to determine as a question of fact, whether the defendant should not have exercised sufficient supervision over his-building to have prevented this young and unauthorized boy from acting as, and creating the impression that he in fact was an attendant at the elevator.

The case shows that the defendant requested the court to-charge six propositions, which are set forth; but it does not-show what answer the court made, or how it disposed of them. But two exceptions were taken to the charge; one to the instruction as to the supervision of the building, which has been discussed, and the following: “ Defendant’s counsel also excepts severally to each and every refusal of the court to charge each and every proposition requested by defendant’s counsel.” It is urged that the refusal to charge the first and second of the six propositions was error. It is sufficient to say that the case-does not show that the court refused to charge either request. The exception above quoted did not point out wherein defendant’s counsel conceived the court to have erred, and thus give an opportunity for correction, for which reason it is unavailing. Walsh v. Kelly, 40 N. Y., 556 ; Requa v. The City of Rochester, 45 id., 129; Harwood v. Keech, 4 Hun, 389 ; S. C., 6 T. & C., 665; Beaver v. Taylor, 93 U. S., 46 .

No exceptions were taken to the rulings admitting or excluding evidence, and the record disclosing no error, the judgment should be affirmed, with costs.

All concur, except Bradley and Haight, JJ., who con-' cur in result.