(After stating the facts.) 1. The owner of an office building, equipped with an elevator which is operated for conveying his tenants and their employees and patrons to and from the various floors, is not a common carrier in the sense that he is bound to serve all the public; yet his duty as to protecting passengers in the elevator is the same as that chargeable to carriers of passengers by other means. 6 Cye. 596; 1 Hutchinson on Carriers, § 100. This duty requires him to exercise extraordinary diligence-on behalf of himself and his agents to protect the lives and persons of his passengers. Civil Code, § 2714. Does the petition allege a case of injury resulting from a failure to exercise extraordinary care by the elevator boy? The plaintiff entered the elevator when it was at rest. While it was still stationary, with the floor of the elevator practically on a level with that of the floor of the building, and the door of the elevator shaft open, she attempted to leave it to return to the office of her employer which she had just quitted. Just as she was in the door and had placed one foot in the hallway of the building the operator suddenly started the car downward. The downward movement of the elevator threw her to the floor, •with her feet protruding over the edge of the elevator, when the operator quickly reversed the mechanism, causing the elevator to go rapidly upward, and to crush her feet against the beams of the floor. It is insisted by the demurrer that no negligence is charged against the defendant, because it is not alleged that the elevator boy had knowledge of the plaintiffs situation either in starting or reversing the movement of the elevator. Negligence is peculiarly a question of fact; and if the circumstances relied on to constitute negligence will afford an inference of failure to exercise proper care, the facts must be left to the jury to draw the inference of the exercise or want of exercise of that standard of diligence which the law exacts. On demurrer the 'allegations of the petition will be taken as true; and if they justify an inference of negligence, the petition will not be dismissed on the ground that the alleged injury was not the result of the defendant’s negligence. From the nature of its operation, the stopping of an elevator at a point where *109its floor and that of the building are practically on a level, with the door of the elevator shaft open, is an implied invitation to passengers to enter and leave the elevator carriage. Tousey v. Roberts, 114 N. Y. 312 (21 N. E. 399, 11 Am. St. R. 655). It is common knowledge that an elevator carriage is a small compartment. If this carriage is put in motion by the operator while a passenger is in the act of leaving, and his body is partly within and partly without the carriage, and in such position that the carriage can not be moved without probable injury to his person, we can not say as a matter of law that the operator may close his eyes to this situation, or is under no duty to see that his carriage has a proper clearance before starting it. Whether extraordinary diligence would require the operator to see that his passenger is out of harm’s way before starting the carriage is for the jury to determine. That being the case, it would be negligence for him to start his carriage without ascertaining the passenger’s peril, if the exercise of the proper care would have disclosed the danger.
2. The point is also made by demurrer that if the allegations of circumstances attending the downward movement of the elevator constitute a specific charge of negligence, and the circumstances of the reversal of the motion are likewise charged, as a specific act of negligence, each independent act of negligence should be alleged in a separate count. A plaintiff who sues to recover damages for a personal injury may embrace in his petition two or more separate counts, setting forth different accounts of the manner in which he was injured, so as to meet any anticipated variations in the proof. But where a consistent account of the manner of incurring the injury is alleged, there is no need for other counts, notwithstanding various acts of negligence may -be alleged. The plaintiff 'alleges that the elevator operator was negligent in starting the elevator, throwing her to the floor, and was also negligent in reversing the mechanism of the carriage without giving her' time to extricate herself from her perilous position. The plaintiff alleged that the downward and upward speeds of the car were so rapid that both movements were not only continuous but practically instantaneous. These allegations refer to a continuous act, and the plaintiff is not required to segregate them into different counts.-
Judgment affirmed.
All Hie Justices concur.
AI-generated responses must be verified and are not legal advice.
