215 A.D. 566 | N.Y. App. Div. | 1926
No. 172 Lorimer street, Brooklyn, the building in which the accident occurred, is a tenant factory building five stories high. It was occupied by many tenants engaged in manufacturing. One of these tenants was the Ideal Shoe Company which had its place of business on the second floor. On the morning of March 5, 1920, Joseph Buadas, an employee of the United Shoe Machinery Corporation of No. 37 Warren street in the borough of Manhattan, was sent to repair some machinery which had been installed by his employer in the said premises of the Ideal Shoe Company. He was later and about ten-thirty o’clock the same morning found in the bottom of an elevator shaft in the Lorimer street building. The door of the elevator opening into the second floor hall, which was the floor on which the Ideal Shoe Company was located, was found partly open, and the collapsible inside gate was open entirely. On the same day and shortly after the accident this collapsible gate, which was constructed with a spring to close automatically when the elevator hoist was not at that floor, was found tied shut with a string. The proof showed that if the spring was broken the gate would stay open.
The defendant was the owner of the building where the accident occurred. A statement as to what happened, made by the deceased before he died, was testified to by a police officer.
The complaint alleged: “ Upon information and belief, that the
The police officer recognized Welk as the man who had notified him of the accident and testified that in company with Welk he
Goldzweig, a witness for plaintiff, testified his concern was known as the Ideal Shoe Manufacturing Company, which Was at the time of the accident located at 172 Lorimer street on the first floor from the ground, one flight of stairs up. He sent to the United Shoe Machinery Company for a mechanic to repair his machinery. This was on' the day of the accident. He testified: “ About ten or after ten, I called up the United Shoe Machinery, and I asked them what is the matter * * * the man doesn’t show up * * * and they told me the man is on the way.” Later he went down and saw the ambulance go away. “ Q. Now, at that time when you went down, what was the condition of the lights in the hall on your floor? A. No lights. Q. And had such a condition as that ever existed before that? A. Yes, it did. Q. Very often? A. Very often.”
This witness further testified that after he saw the ambulance drive away that morning he used the elevator. He found it at the fourth floor and had to pull it down. The elevator was operated by two ropes, “ One rope you have to pull, then it goes up, one rope you have to pull and then it goes down.” On the ground floor he found the door of the elevator did not close and inside the elevator there was a broken gate. When he came to his floor he “ found the door the same way, it does not close; just the same as the other. Q. "What door? A. The front doors, the iron doors, the two half closed. * * * Those doors and the gate was tied up when I went to use it. Q. That is the gate on your'floor? A. That is the gate on my floor, on the inside of the shaft. Q. There was a gate, a collapsible gate, was it? A. Yes. Then when I used it, I opened up that piece of string, the gate went back. * * * The Court: You mean it was shoved to the side and tied there, is that it? The Witness: Yes. I mean, you know when there is an open space, you tie it up. I mean this is open. There when you pull it you can’t go through there. Closed means when the gate is together. * * * It was tied up. That means closed. * * * The Court: * * * Was the gate across the opening when you got there? The Witness: Yes. The Court': And it was tied with a piece of string? The Witness: Yes. Q. At the time when you went up? A. "When I went up. * * * Q. And you cut the piece of string? A. Yes. Q. And that the gate then opened? A. Yes.” This witness further testified that there were
Defendant called as a witness the son of the owner, who testified that at the time of the accident there were gas jets on each floor, that the doors to the elevator shaft Were furnished with springs, the object of which was to have these doors act as self-closing doors. These doors were on all floors except the basement floor. Inside the door of the elevator is a telescope gate. These are collapsible gates, and are on every floor. This collapsible gate behind each door of the elevator closes the opening. “ There is a catch which releases a spring, if the elevator gets on the floor, the level of each door, and those doors automatically open, and as the elevator leaves that floor, this catch disengages and they automatically close * * * that is * * * closes the opening.” That is true of all floors, except the basement floor. On the basement floor there were two metal doors which were supposed to be closed by heavy springs so that they were self-closing and locking together. There were springs on all these doors. The witness testified he examined them on the morning of the accident and a week prior thereto. There is another entryway to the elevator or hoistway on the second floor besides the door from the hallway. That doorway is entirely on the premises of the Ideal Shoe Company and has nothing to do with the hallway. “ There is a horizontal bar across, just like a huge hook and eye, and that hook drops into that hook on the other side.”
The witness testified that the conditions he found on the afternoon of the accident were the same as they were when he was there to collect rent four or five days before. On cross-examination this witness admitted that on the very day of the accident work was being done on doors of the elevator shaft by the Eastern District Iron Works. “ Q. Part of the work they were doing there was the installing of springs on those doors? A. Not on that [second] floor. Q. In the building, on that shaft? A. Correct; that is right.”
Edward J. Brown, inspector of elevators, bureau of buildings, borough of Brooldyn, testified that he inspected the building 172 Lorimer street on February 16, 1920, on which occasion he examined the inclosure of the hatchway on each floor and found the appliances for closing the elevator shaft openings were “ iron scissors type, collapsible sliding gate, which was opened manually and closed automatically by a tension spiral spring, which was made permanently fast in the jamb of the door opening at one end, and the other end fastened to half part of the gate. On
The witness further testified that besides this collapsible gate on each floor there was a solid metal door outside on the hallway side of this elevator entrance. That door is provided with a door spring which is hooked on the jamb of the door; that closes the door. “ But those doors we did not inspect for safety, because those doors are more for fire protection, and they are supposed to be used in case of fire, or when a factory closes up at nighttime. In all factory buildings the safety of the inclosure is to be guarded inside that door ” by the collapsible gates.
This witness further testified that the springs on the collapsible gates, When examined by him on February 16, 1920, were practically new. “ The whole entire outfit was a new installation. * * * Q. Did these collapsible gates conform to the rules and regulations of the Building Department? A. Yes, sir.”
• Defendant called other witnesses who testified that the lights in the hallways, especially as to the second floor, were burning at the time of the accident. One witness, Charles Riehl, testified he saw the gateway and door on the second floor after the accident and they were both closed; that in February of 1920 he put spiral springs on the elevator doors; that he had nothing to do with the collapsible gates. On this particular morning of the accident, March 5, 1920, the witness stated he was putting springs on the metal doors to the elevator on the fourth and fifth floors. “ Q. One question with regard to these springs. Were these new springs you were putting in, or were you replacing springs that were already there? A. At what time? Q. On this morning of the accident? A. Replacing springs. Q. Were you taking springs off, and putting other springs on? A. Yes, sir.”
The plaintiff called a witness in rebuttal to testify that he had interviewed the witness Biehl on March 19, 1920, and that Riehl then stated that the lighting conditions in 172 Lorimer street at the time of the accident were bad.
At the close of the case the court announced in response to an inquiry by defendant’s counsel: “ I am going to charge the jury that they cannot find the defendant guilty of any negligence through not having put in the proper door, proper sliding gates, or the proper door or maintained them.”
In his charge to the jury the learned trial justice said in reference to the fall of the deceased: “ Now, nobody saw him fall; nobody really knows exactly so that he can testify from knowledge how that man fell; and yet you have the duty imposed on you of finding whether or not he fell by the defendant’s negligence. There is nothing in the case about his negligence. He is not charged with negligence contributing to the accident. But unless you find some acts of the defendant which was proximate cause, the direct proximate cause of his death, the plaintiff cannot recover. • That is the question of liability in the case, whether you can find such act of negligence or not. There has been much evidence in this case — I am sorry it Was necessary to take the time to receive it — because I now have to tell you to reject it. But until we received it, we could not tell to what extent it was available for the purposes of the case. I now refer to the alleged violations of law by the defendant, with respect to an alleged failure to protect this shaft on the second floor by a gate which Would automatically close, and thereby automatically prevent the plaintiff from falling, or might be so it tended to do so. The reason I have taken that from you, I might as well explain, although it is not necessary that I should, is because I cannot find that the defendant was lacking in any particular in law; that is, with respect to obeying those rules andpthose laws. Within less than three weeks before the accident, the premises were inspected and gates were found equipped with springs designed for that very purpose of closing the gate, and as nothing is shown as to when they became defective or who was responsible for their being defective, I tell you that you may not charge the defendant with negligence by reason of leaving that gate on the second floor open, or failing to provide proper gates or anything of that. That is out of the case. Now, what remains in the case? The question of lighting. * * *
“ What time did he fall? Well, nobody knows exactly. He was
Plaintiff’s counsel duly excepted “ to the elimination in your charge of negligence based on the failure of the gate to be closed or to automatically close when the elevator left, as any basis of negligence in the case.” And he further stated: “ I also except to that part of your Honor’s charge which specifies that the only basis of negligence in this case is the lack of light.”
“ Juror No. 4: I wish to ask a question, Your Honor. The Court: Yes, sir. Juror No. 4: I am a little confused in your statement it is important to determine whether the witness testified that that gate was tied open or shut, having previously stated that the gates were out of the question, and it resolved itself down to the question of light. The Court: I mean bearing on the general situation. Of course, if there had not been something there for him to fall down from, he could not have fallen. Where did he fall? You see, it might indicate where he fell, according as to how you construe the testimony of that witness, might it not? I am simply, without taking sides at all, trying to give you
The court thus removed from the consideration of the jury the question whether the landlord had used reasonable care in the construction and maintenance of the elevator, or whether he had been guilty of any negligence in respect thereto which caused or contributed to cause the death of the deceased.
It is clear from the evidence in this case that the landlord supplied to the tenants of this building for their use the elevator in question. The landlord did not supply an operator. The tenants operated it and used it as they needed its use. Instead of carrying the materials they needed in their business up or down the stairs, the landlord supplied the elevator so that they could thereby carry up or bring down such materials. It was his duty to use reasonable care in the construction and maintenance of this elevator, to see that it was reasonably safe for the purpose for which it was used, and that the elevator shaft was protected by substantial and sufficient guard, door or gate to prevent any one from falling into the shaft. This duty the landlord owed not only to the tenants but also to those who had business with the tenants and were lawfully on the premises. The jury might have found that the proper performance of this duty required the landlord to see that the entrance to the elevator shaft on each floor was properly protected by a door and a gate which would shut and remain shut While the elevator hoist was either above or below the particular floor. There was sufficient evidence in the case to warrant the inference that the deceased met his death by falling down the open and unprotected elevator shaft from the second floor while on the premises to perform the work assigned to him, to wit, to go to the Ideal Shoe Manufacturing Company’s place of business on the second floor and repair the machinery which had been installed there by his employer. The open door of the elevator shaft and the open elevator gate found on that floor When he was found at the bottom of the shaft, as well as the lack' of light on the second floor, coupled with the fact testified to that the elevator doors were not in proper working order at and before the time in question, raised a question of fact as to whether the landlord had used reasonable care in the construction and maintenance of the elevator. There was a conflict of 'evidence as to the condition of the elevator shaft door and the elevator gate at the time of the accident, as well as to whether there Was sufficient or any light on the second floor. The jury should have been permitted to pass on both questions. The admitted fact that on the day of the accident new springs were being placed on the elevator doors tended to show
The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Finch and Martin, JJ., concur; Clarke, P. J., and Merrell, J., concur in result.
Judgment and order reversed and new trial ordered, with costs to appellant to abide the event.