
    MORRISON v. METROPOLITAN TELEPHONE COMPANY.
    
      N. Y. Supreme Court, Second Department ;
    
    
      May, 1893.
    1. Negligence; proof'.] If, in an action for negligence, the facts and circumstances be such that the inferences to be drawn from them are not certain, and different minds may reach dissimilar conclusions, and a process of reasoning is necessary to determine whether negligence is to be attributed to a party, it is for the jury to make the deduction.
    
    2. The samel] Upon the dismissal of the complaint in such action the plaintiff is entitled to the benefit of every inference which ■ can legitimately be drawn in his favor from the facts and circumstances.
    3. The same.} The plaintiff, however, is bound to establish that the injury was caused solely by the negligence of the defendant, and that want of care on the part of the person injured in no way contributed to the result. As to both of these points, plaintiff has the burden of the whole case, and both must be established by competent proof and not left to speculation.
    4. Negligence j falling into passenger elevator shaft.] Deceased, a letter-carrier, walked rapidly to the open door of a passenger elevator shaft on the ground floor of defendant’s premises, past a man who was standing in the doorway, and, the car being above, fell down the shaft and received the injuries which resulted in his death. The portion of the elevator apparatus used to make signals was undergoing repair, and the man standing in the doorway was there to assist in the work and to guard the door which was necessarily kept partly open. He gave no warning to deceased and made no resistance to his passage,—• Held, that a dismissal of the complaint was erroneous, and that the questions of negligence and contributory negligence should „ have been submitted to the jury.
    
    Hearing of exceptions in the first 'instance at General Term, after dismissal of the complaint at the circuit court in Kings county.
    The action was brought by Lucy S. .Morrison, as administratrix, etc., of Samuel H. Morrison, deceased, against The Metropolitan Telephone and Telegraph Company to recover damages sustained by the death of plaintiff’s intestate.
    The facts are stated in the opinion.
    
      
      Thomas E. Pearsall, for plaintiff.
    I. At the outset, the plaintiff invokes the rule that on an appeal from a non-suit the appellate court will indulge in every presumption and intendment in plaintiff’s favor. All the presumptions and inferences which the plaintiff had a right to ask "from the jury are to be conceded to her ; and all disputed facts are-to be decided in her favor. To justify the non-suit,the-questions of negligence and contributory negligence must be held against the plaintiff so clearly that there is left no-room for doubt (citing Cook v. N. Y. Central R. R. Co., 1. Abb. Ct. App. Dec. 432 ; Rehberg v. Mayor, etc., 91 N. Y. 141). Negligence was proven against the defendant. It does not avail the defendant that they placed O’Neil in the open elevator door to warn intending passengers that the elevator was not there (fol. 87), when as matter of fact he omitted to warn the deceased (fob 95). His omission in this instance was negligence for which the defendant is liable. An open elevator door under circumstances not so-strong as those at bar in plaintiff’s favor, has been held negligence without questioning (citing Tousey v. Roberts, 114 N. Y. 312; Dawson v. Sloane, 100 Id. 620; aff’g, without opinion, 49 Super. Ct. [J. & S], 304).
    II. It is more difficult, however, to reconcile this non-suit with the case of McRickard v. Flint (114 N. Y. 222) where the question of contributory negligence appears far stronger against the plaintiff there than in the case at bar. In that case it appeared that the plaintiff, while in a private building looking for one of the defendants, pushed open a partly open door, not in the usual place of entry, and fell into an elevator shaft. But, as was said in the opinion of the court of appeals, “ If the plaintiff had stopped and looked about when he entered the door, he evidently could have seen the situation.” On a former appeal the court of appeals (97 N. Y. 641) reversed a non-suit for contributory negligence under this state of facts, and held the question to be one of fact. The same rulings. were re-affirmed on this appeal, and the verdict of the jury in plaintiff’s favor was sustained.
    III. The absence from contributory negligence may be made to appear as well from the circumstances of the case as from evidence directly establishing the fact. In weighing those circumstances it may be assumed that all creatures are desirous of preserving their lives and keeping their bodies' from harm (citing Morrison v. N. Y. Central R. R. Co., 63 N. Y. 643 ; Hart v. Hudson River Bridge Co., 80 id. 622 ; Jones v. N. Y. Central, etc. R. R. Co., 10 Abb. N. C. 200 ; aff’d in 82 N. Y. 628). It is now the settled rule that in actions for personal injury from negligence •of the defendant, the absence of any fault on the part of the plaintiff may be inferred from the circumstances in connection with the ordinary habits, conduct and motive of men, and that the character of the defendant’s negligence .may be1 such as to prima facie prove the whole issue (citing Johnson v. Hudson River R. R. Co., 20 N. Y. 65 ; followed in Galvin v. Mayor, etc. of N. Y., 112 Id. 223). .And the cases hold in actions of this character, where death has sealed the lips of him who can best explain the cause, that the jury have the right to infer from all the facts that the deceased was called to the place where he received his injuries in tiieperformance of his duty, and had not omitted the precautions which a prudent man would take in the presence of a known danger (citing Galvin v. Mayor, etc. of N. Y., 112 N. Y. 223, and cases hereinabove cited). The court have even gone so far as to hold that while previous knowledge by a party injured of a dangerous situation, or impending danger, from which a person of ordinary intelligence and prudence might reasonably ■apprehend injury, generally imposes upon him the duty of ■exercising greater care and caution in approaching it, yet the degree of care which should be required of such a person is always a question of fact to be determined by the jury (citing Palmer v. Dearing, 93 N. Y. 10, and cases cited).
    
      IV. Where a witness is interested in the question at issue, then even though he be unimpeached, or uncontradicted, or his story probable, the court is never warranted in directing a verdict on such testimony, nor is a jury bound to refrain from exercising their judgment as to its truth (citing Elwood v. Western Union Tel. Co., 45 N. Y. 549; Kavanagh v. Wilson, 70 Id. 177 ; Gildersleeve v. Landon, 73 Id. 609 ; Wohlfahrt v. Beckert, 92 Id. 490; Volkmar v. Manhattan Ry. Co., 134 Id. 418 ; Newton v. Pope, 1 Cow. 110; Lomer v. Meeker, 25 N. Y. 361).
    
      Burton N. Harrison, for defendant.
    I. On the evidence, the plaintiff failed to prove the cause of action alleged in the amended complaint, or any cause of action •against the defendant; and the clear and uncontradicted testimony showed unmistakably, both that the defendant was not negligent, and that the negligence of the deceased not only was contributory to the injuries he suffered, but was the sole cause of them. The dismissal of the complaint was a plain duty the court could not disregard (citing Cordell v. N. Y. Central, etc. R. R. Co., 75 N. Y. 332 ; Hyatt v. Johnston, 91 Penn. St. 200; Ryder v. Wombwell, L. R. 4 Exch. 39 ; Improvement Co. v. Munson, 14 Wall. [U. S.] 448 ; Commissioners v. Clark, 94 U. S. 284; Dwight v. Germania Ins. Co., 103 N. Y. 358; Hayes v. Forty-second Street R. R. Co., 97 Id. 259; Powers v. N. Y. Central R. R. Co., 38 State Rep. 559 ; Deyo v. N. Y. Central R. R. Co., 34 N. Y. 9, and authorities there cited ; Searles v. Manhattan Ry. Co., 101 Id. 661 ; Bond v. Smith, 113 Id. 378-385 ; Taylor v. City of Yonkers, 105 Id. 209 ; Dobbins v. Brown, 119 Id. 193 ; Conlin v. Rodgers, 39 State Rep. 53 ; Alexander v. Rochester City & Brighton R. R., 128 N. Y. 15 ; Larmore v. Crown Point Iron Co., 101 Id. 394 ; Splittorf v. State, 108 Id. 206 ; Lamb v. Camden & Amboy R. R. Co:, 46 Id. 279; Sammon v. N. Y. & Harlem R. R. Co., 62 Id. 255 ; Hale v. Smith, 78 Id. 483 ; Neuendorff v. World Mut. Life Ins. Co., 69 
      Id. 389, 392 ; Cutter v. Morris, 41 Hun, 575 ; Henderson v. Knickerbocker Ice Co., 23 State Rep. 530 ; Reynolds v. N. Y. Central R. R. Co., 58 N. Y. 248; Hart v. Hudson River Bridge Co., 84 Id. 62 ; Wendell v. N. Y. Central, etc. R. R. Co., 91 Id. 426; Becht v. Corbin, 92 Id. 658).
    II. There is no exception in the case which should be sustained to entitle the plaintiff to have the direction of the trial court, in dismissing the complaint, set aside (citing Alberti v. N. Y., Lake Erie, etc. R. R. Co., 118 N. Y. 88).
    
    
      
       See, to same effect, Salt Springs Natl. Bank v. Sloan, 135 N Y. 371, 383.
    
    
      
       For the rule in the case of a freight elevator, see the next case in this volume.
    
   Dykman, J.

This is an action under the statute to recover damages for the death of the plaintiff’s intestate. After the testimony was closed on both sides at the trial, the complaint of the plaintiff was dismissed, and the exceptions were directed to be heard at the General Term in the first instance.

The intestate of the plaintiff met his death by falling down an elevator shaft in the building of the defendant in the City of New York, while the elevator was above the floor. The elevator itself was in working order, but an instrument or apparatus called the buzzer, used like an electric bell to make signals, was undergoing repair. An assistant of .the man who was making the repairs to the buzzer, or putting it in order, stood in the doorway, to pass in the necessary tools and also to guard the door which was necessarily kept open, or partly so. The deceased man was a mail-carrier, and as he entered the first floor of the building, he paused for a few seconds to assort the letters which he was to deliver in the building, and then he rushed to the door of the elevator shaft, shoved or crowded past the man who was standing in the doorway, and fell down the shaft and received the injuries which resulted in his death. The case is near the border line and by no means free from difficulty.

In the first place, the appellant is entitled to the benefit ■of every inference which can legitimately be drawn in her favor from the facts and circumstances disclosed upon the trial, because she may assume here that the jury would .have made such deduction. Further, if the facts and circumstances be such that the inferences to be drawn from them are not certain and where different minds may reach ■dissimilar conclusions, and a process of reasoning is necessary to determine whether negligence is to be attributed to •a party, it is for the jury to make the deduction (Hart v. Hudson River Bridge Co., 80 N. Y. 622).

Equally well settled is the rule that the plaintiff in actions like this must prove that death was caused solely by the negligence of the defendant, and that the want of ■care on the part of the deceased in no way made any contribution to the result, and the two points must be established by competent proof and must not be left to speculation. The plaintiff has the burden upon the whole case (Cordell v. N. Y. C. & H. R. R. Co., 75 N. Y. 332). “ It is not enough to authorize the submission of a question as ■one of- fact to the jury that there is some evidence. A scintilla of evidence or a mere surmise that there may have been negligence on the part of the defendants would not justify the judge in leaving the case to the jury ” (Banbec v. N. Y. & Harlem R. R. Co., 59 N. Y. 356).

Nor are judges any longer required to submit a question to the jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict in favor of that party (Dwight v. Germania Ins. Co., 103 N. Y. 358).

These are plain rules and easily understood, but the great difficulty in a border case lies iff theirapplication.

The case of Tousey v. Roberts (114 N. Y. 314) is somewhat like this, but the facts were stronger against the defendant than they are here. That was an elevator case. The husband of the plaintiff leased rooms in an apartment-house owned by the defendant in the City of New York, and the usual mode of reaching such apartments was by an elevator operated by the defendant for the accommodation of his tenants. The door through which the elevator car was entered from the ground floor could be opened from the outside.. The plaintiff entered the hallway from the street door between six and seven o’clock on the seventh day of May, 1883. There was no artificial light in the hallway. As she approached the elevator the door was thrown open by a boy who had frequently operated the elevator, but was not employed for that purpose. The'plaintiff stepped through the door, and as the car was above she fell to the bottom of the shaft and was injured.

In that case the court said as the defendant operated the elevator for the benefit of his tenants he was required to exercise due care for their safety and was liable to them for the negligence of his employees in its operation. So it must be said here that as the defendant operated the elevator for the benefit of persons having business in the building, it was required to exercise due care for their safety and liable for the negligence of its employees in its. operation.

As yet we have but little assistance from the adjudicated cases. In the Tousey case there were no artificial lights and the accident happened in the evening. Here the accident was about half past one in the afternoon and there was plenty of artificial light, so much that the workmen could work inside of the shaft. But there as here the door leading to the car in the shaft was open. There the court said that it was not as matter of law contributory negligence on the part of the plaintiff to pass through without stopping to look or listen. But there the door was unguarded, and here it was guarded. Does that change the case if the guard was ineffectual ? The door was open or partly so, and a man stood in it to prevent persons from passing, but why he was there the deceased did not know and could not know. He saw the man and went past him, but had he any means of knowing why he was there, or whether he had any business there ? The-man gave no warning and made no resistance against the-passage of the deceased. Might not the deceased have fairly believed either that the man had come from the car, or was about to enter it, or was standing there for no-purpose ? He saw -the door open or partly so, and the shaft well lighted as if everything was regular, and he received no warning, saw no obstruction, and met with no opposition. If the man was placed there as a guard, it was his duty to use all proper means to prevent people from entering the doorway, and instead of performing that duty he did nothing but stand still and remain silent. Was he not in that respect guilty of negligence which must be attributed to the defendant ? The deceased man was doubtless in haste, all are in haste at mid-day in that great city, and it is assumed to be no uncommon sight to see persons around the door of an elevator. It is not supposed to be a place of danger to be approached with caution, and if persons are standing at the door it would be no unnatural assumption to assume that they were either there for no purpose or were going in or coming out. It must be borne in mind that this elevator was in full operation, and the car had but just started on an upward trip.

Under all these circumstances we cannot say that the inferences to be drawn from them are certain and uncontrovertable and that different minds might not reach diverse- conclusions. We cannot say as a matter of law that the deceased had not the right to rely upon the appearances presented, and act as he did, or that a verdict in favor of the plaintiff would be destitute of support. It was, therefore, the peculiar province of the jury to draw the proper inferences and not the court.

The verdict should, therefore, be set aside and a new trial granted with costs to abide the event.

Barnard, P. J., and Pratt, J., concurred.  