154 N.Y.S. 509 | N.Y. App. Div. | 1915
This action was brought to recover damages for negligence causing the death of Henry Bischoff, Jr., a j ustice of the Supreme Court in this department. The defendant was the owner of the premises 51 Chambers street, in Hew York city, several of the upper floors of which, including the twelfth and thirteenth floors, were held under lease by the city of Hew York and were used for the purposes of the Supreme Court and the justices thereof. On the 28th of March, 1913, Justice Bischoff came to his death by falling down the shaft of one of the several passenger elevators with which the building, was equipped. The elevator in question was protected by two gates, one called the shaft or “floor” gate, opening directly intq the shaft from the main corridor of each of the several floors of the building, and the other, a collapsible-latticed or “grille” gate, which was attached to the front of the elevator and served as a gate at the point of entrance and exit thereto. The shaft gate was operated by pneumatic power controlled by a “ tripper ” which came up through the floor of the car. When the operator of the car pressed his foot down upon this “tripper” the shaft door would open, and when his foot was removed the door would automatically close. The latticed gate to the car was opened and closed by the hand of the operator. The movement of the car itself was controlled by a hand lever, which being pushed forward or back or brought to “center” would set the car in motion up or down or stop it.
The circumstances of the accident were told by two witnesses for the plaintiff. Berthoud testified that he entered the car at the ground floor of the building, taking a position at the. front of the car and in front of Justice Bischoff, who stood a little way back of him. The car stopped at the eleventh floor to permit Berthoud to alight. After leaving the car, Berthoud had proceeded but a few feet into the corridor when he heard the breaking of glass, and turning around saw a black- derby hat, afterwards identified as belonging to Justice Bischoff, just coming to rest, as though it had dropped on the floor of the corridor. Turning around he saw broken glass falling from the transom or fanlight above the shaft entrance to the elevator, and the heavy glass fanlight, which was covered with wire netting, was bulged out
The learned trial court left to the jury the questions of defendant’s negligence and of contributory negligence on the part of Justice Bischoff. I think this was proper. It is evident that the evidence justified a finding that at the moment immediately before the car started, Justice Bischoff stood in a position from which no danger was to be apprehended, except such as might result from his becoming impinged by the closing gate of the shaft. The fact that he was attempting to leave the car through the closing gate is not .material, because, concededly, he did not succeed in so doing before the car started. The jury was thus justified in also finding that the sole cause of the accident was the act of the operator in starting the car while Justice Bischoff stood in a position of safety, assuming the car had remained at rest, but in such a position as would almost inevitably result in his injury if the car was then set in motion and so continued until it reached the obstacles which, projected into the shaft from above. The jury’s verdict in favor of the plaintiff was in the sum of $100,000, which the trial court reduced to $70,000. The defendant complains of this as excessive. The evidence on the question of damages showed that Justice Bischoff left a widow, but no children; his only heirs and next of kin being two grandchildren, children of a deceased daugh ter. Whether, under the Code of Civil Procedure (§ 1902 et seq.), these grandchildren have any interest in the sum recovered by the plaintiff is a question to be determined when distribution of any such recovery is to be made. It is not involved on this appeal. It is clear, however, that in any event, the mere proof of the existence of grandchildren was not harmful error. At the time of his death Justice Bischoff was sixty
The judgment and order should be affirmed, with costs.
Ingraham, P. J., Olarke, Scott and Dowling, JJ., concurred.
Judgment and order affirmed, with costs.