Donnelly v. Jenkins , 58 How. Pr. 252 ( 1880 )

Van Brunt, J.

[After stating the facts as above.]—We cannot hold, under the evidence in this case, that the maintenance of an elevator in the building Vas in itself a nuisance. The evidence shows that the elevator was properly inclosed, and that it was provided with doors which were to be kept shut when the elevator was not in use, and which were a reasonably eflieetual protection against accidents, and if under the circumstances of this case, the deceased opened the door of this elevator before he fell through it, he undoubtedly was guilty of contributive negligence. If the doors were shut, the stairs were in full sight, and he knew of the fact of an elevator being there, as he had been upon the premises for the delivery of goods some three times before.

If, however, the elevator door was left open, it partially concealed the stairs, and the deceased may have naturally made the mistake in supposing that the door to the elevator was the door to the stairway. In such a case, the negligence by which the deceased lost his life.would be the leaving the door of the elevator open.

It seems to be reasonably clear that, as the elevator was properly constructed and properly protected for accidents arising from negligence, the defendants, Dunham & Russell, would not be liable for the negligent use of the hatchway by Jenkins, and vice versa. In the case of Totten v. Phipps (52 N. Y. 354), the defendants had entire and exclusive charge of the trap-door and had been accustomed to shut it down in the evening. The deceased was a tenant of the upper floors, and had an easement over the hallway in which this trap-door was situated. In the night, going to his premises, the trap-door being left open, the deceased fell through and was killed. The court held that the deceased had a right to assume that the trap-door was, as usual, closed, and that, going upon the premises, as he had a right to do, in the night, he was not guilty of negligence in acting upon that assumption, and that the defendants were guilty of negligence in leaving the trap-door open.

That case is distinguishable from the one at bar in the fact that in the case cited the defendants, who were members of one firm, had exclusive control of the trap-door, as it was used only by them, and if it was left open it must have been so left by them; whereas, in the" case at bar, Dunham & Russell and Jenkins are different parties, the one in no way liable for the negligence of the other. If Dunham & Russell left that elevator open, then they alone are liable, and if Jenkins left that door open, then he alone is liable.

There being no evidence in this case by whom the door was left open, I am nnable to see how the jury could be allowed to speculate and fix a liability upon either or all of the defendants, as their fancy might dictate.”

If either of these defendants used that elevator exclusively, then if this door "was left open, we might legitimately infer that it had been left open by such defendant, but in the absence of all proof upon this subject, I am unable to see how we can say that this or that defendant was guilty of the negligence.

I am of the opinion therefore that there was no evidence showing the defendants guilty of negligence, and the judgment must be reversed and a new trial ordered, with costs to abide event.

Charles P. Daly, Ch: J., concurred.

Judgment reversed, and new trial ordered, with costs to abide event.