Guichard v. New

This action is brought to recover damages for injuries sustained by the plaintiff.' On September 13, 1892, the defendant was the owner of premises on South Fifth avenue, in this city, which were a five-story building, rented in floors to manufacturers, some of whom employed a large number of hands ; among ‘them, young girls. At the rear of the hallway in the building is an elevator used for both freight and passengers ; very little of the former being carried thereon, it having been mostly used for passengers. The elevator, by facing, is plainly visible from the street. On each floor, at the opening into the elevator shaft, there was an automatic wooden gate, three feet high, which slid up and down like a window, and a gate of the same construction guarded the shaft at the street floor. Attached to and on the elevator car was a flexible iron gate, which was open at the time of the accident, and was so rusted that it could not be closed. Between the wooden gate on the landing and the iron gate on the car, there, was a space of 2% inches, and between the top of the iron gate on the car and the iron bar at the top of the car, there was a space of about 10 inches. On the date mentioned, the appellant, then an infant eight years and seven months of age, and about four feet two inches in height, was playing on the sidewalk in front of the adjoining building. The man employed to run the elevator for respondent called the boy inside the door of the hallway, and told him to get a pitcher and get a pint of beer to pay for which he gave the boy 10 cents. The boy went home for a pitcher, and thence across the street to a saloon, where he got the beer, and returned to the premises, and gave it to the elevator man, in the front part of the hall. The latter requested him to go up on the

At the close of plaintiff’s case, a motion to dismiss the complaint was made, placed upon three grounds: (1) That no negligence on defendant’s part was shown ; (2) that no evidence that plaintiff was free from contributory negligence was given, but, on the contrary, the evidence was that plaintiff himself contributed to the injury; and (3) that plaintiff was a trespasser on the premises, or, at most, was there by mere sufferance, and thus assumed the conditions as they existed" there, the defendant owing him no special duty. The learned trial judge granted the motion upon the two latter grounds assigned, viz. the absence of evidence showing, plaintiff’s freedom from contributory negligence, and that for the reason that the accident happened after the boy had quitted the elevator to go to the street, and upon his return, the defendant could not be held responsible. We might confine our attention, therefore, to these grounds; bot as the other question, of the absence of any negligence on the part of the defendant, is also urged to support the judgment, it will be necessary to refer briefly to the three grounds upon which the motion was made.

First, was there sufficient evidence to submit to the jury the question of whether or not the defendant was negligent? As stated, the construction and use of the elevator and shaft were not that of a hoistway, but of a passenger elevator, with a close-fitting car, so that the slightest projection of a person’s head or limbs into the shaft would be dangerous, the distance between the iron bar at the top of the car and the wooden gate at the landing being but

“ There are prongs go up from this iron gate, and those prongs slip through the iron bar on the top of the car. If this gate had been shut, that iron frame,,couldn’t have caught the boy’s head, unless he put it in between the top of the gate and this car. In-that case his face would have struck that, if he had put his head over the gate.”

According to this witness, if the flexible ' gate of the car had' been closed, the projection of the boy’s head over the low, wooden gate on the landing would have brought his face against the gate of the car, unless he happened to run his head in the space (assuming the gates to be closed) that would be left between the top of the gate and the iron bar at the top of the car, which, as testified to by one of the witnesses, was about eight inches. Apart, however, from this, considering the character of the construction of the sliding gate on the landing, which was only three feet high, and which cannot be held, as a matter of law, to have been fully adequate for the protection of the passengers, coupled with the fact that the danger to be apprehended from this low gate was brought home to the defendant, we think a question was presented as to whether such a construction was proper and safe, and a compliance with the statute, and upon this branch, as to defendant’s negligence, sufficient to go to the jury.

Upon the second ground, that there is no evidence that the plaintiff was free from contributory negligence, there was sufficient in the case upon which the learned judge should have submitted this, also, to the jury. It has been frequently held that an infant, although sui juris and thus chargeable with his own negligence which contributed to his injury, is not to be held to the same standard of prudence and judgment as a man of mature years and experience. In O'Mara v. Hudson River Railroad, Co., 38 N. Y. 449 , the court say :

“It is to be considered, also, that -the deceased was a lad eleven and a half years old, to whom greater indulgence should be extended than to an adult. He was of that age that he was quite fit to be trusted with the care of his own person in the streets of a country village, and yet it is not probable that he would exercise as much prudence and caution as an adult. * * * The young are entitled to the same rights, and cannot be required to exercise as great foresight and vigilance, as those of maturer years. More care towards them is required than towards others. In the case of a child of but two or three years of age, no knowledge or foresight could be expected. This an engineer is bound to know, and, if the child is within his view, to act accordingly. In a case like the present,—that of a boy eleven and a half years of age,—the jury

See, also, McGovern v. N. Y. C. &. H. R. Railroad Co., 67 N. Y. 421 ; Byrne v. N. Y. C. & H. R. Railroad Co., 83 N. Y. 621 ; Wendell v. N. Y. C. &. H. R. Railroad Co., 91 N. Y. 420 ; Brown v. City of Syracuse, 77 Hun, 411 ; 60 St. Rep. 16 .

No doubt, as urged by the respondent, the act of the boy, in putting his head over the gate to call to the elevator man, contributed to the injury.' But an act, though contributory to the injury, if not, under all the circumstances appearing, negligent, would not prevent a recovery. In other words, it is not the contributing act, but contributory negligence, that defeats recovery; and this distinction has been pointed out in the case of Schmidt v. Cook, 30 Abb. N. C. 285 -290; 53 St. Rep. 84 . We do not think, therefore, as a matter of law, it could be held that a child of the age of the appellant, who was injured in the manner described, was guilty of contributory negligence which would bar a recovery, but, upon the facts here appearing, that question should have been submitted to the jury.

The final ground, that after the boy left the elevator, for the purpose of returning to the street, the defendant owed him no obligation, does not seem to us to be tenable. That the boy was not a trespasser appears from the fact that he was invited upon the premises by the elevator man, who used him in doing an errand ; and, in the absence of express rules to the contrary, there was nothing wrongful in sending the boy upon a message. If, instead of sen cling him for beer, the elevator man had sent him for food, or for water to quench his thirst, we do not think, unless there was a rule of the defendant forbidding his employes sending a boy on such an errand, that it would be wrongful in him to do so. There is no prohibition against a workman having a pint of beer, with which to quench his thirst, any more than there is against his having food or water. Nor is there sufficient in the fact that it was beer, instead of either food or water, to justify the conclusion that the boy, while on the premises, where he bad been brought by the invitation of one having the apparent right to do so, was a trespasser. By this we do not mean to hold that the one who sends the boy, or the one who sells the beer to him, may not do wrong, but only that the boy’s status, by the mere fact of going, is not changed from a rightful into a wrongful one. It is unnecessary, however, for us to determine just what the boy’s status was, because, even if technically a trespasser, it would not, as a matter of law, preclude a recovery. But we do not think he could be regarded, even technically, as a trespasser.

Upon all the testimony, as inferences favorable to the plaintiff, upon all the grounds, could have been drawn, and as it cannot be said, as a matter of law, that any or all should have been resolved in defendant’s favor, we think it was error to dismiss the complaint; and for such "error the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.

All concur.