
    Margaret Racine, as Administratrix, etc., of Louis T. Racine, Deceased, Respondent, v. Theodore W. Morris and Others, Doing Business under the Firm Name of Theodore W. Morris and Company, Appellants, Impleaded with The Rector, Church Wardens and Vestrymen of Trinity Church in the City of New York (Sued as Trinity Corporation), Defendant.
    First Department,
    February 4, 1910.
    negligence — death from fall down unguarded elevator shaft — evidence — rules of police department requiring officer to enter building—when police officer entering building licensee by public necessity — duties of owner of building to those entering — when owner of building not liable to police officer at common, law — violation of statutory duty to guard elevator shafts — negligence through violation of statute — nature of remedy.
    In an action to recover for the death of a police officer who, on discovering the door of a building ajar at ' night, entered and fell down an unguarded elevator shaft, it is error to exclude the rules of the police department requiring officers to make an investigation on finding the door of a vacant building ajar.
    A police officer on entering a building under the circumstances aforesaid is a licensee by operation of law through public necessity.
    The owner of private premises owes no duty of active vigilance, to a mere licensee who comes upon his premises witho.ut invitation, express or implied, and does not owe to him the duty of even ordinary care with respect to the condition of his premises. He is liable, however, to such licensee for intentional or willful injury while lawfully on the premises, and also for affirmative acts of negligence causing injury.
    But the owner of a building used for trade is not liable under any of the rules aforesaid for the death of a police officer who, entering at night in the course of his duty, fell down an unguarded elevator shaft.
    While the owner of a building used for business purposes owes, an obligation to those who come thereon for business purposes to keep it' in reasonably safe condition, he owes no such common-law duty to a police officer who enters at night in the performance of his duty, for he is not a customér, nor does he enter on the business of the owner.
    But as the Legislature ratified the building code of the city of Hew York, providing among other things that the guards and trap doors of freight elevators shall be closed at the close of the business of each day, and as such requirement was made for the benefit of policemen and firemen, the failure of an owner to fulfill these statutory duties is prima fade evidence of negligence which, while not conclusive, is sufficient to take the case to the jury.
    
      Where the Legislature enjoins a duty and creates a cause of action for its violation, the statutory remedy is exclusive; but where no special remedy is provided and the violation of the statute causes injury to the persons for whose benefit it -was enacted, there is an action for damages the same as if it were a common-law duty.
    Scott and Miller, JJ., dissented in part, with opinion.
    . Appeal by the defendants, Theodore W. Morris and others, doing-business under the firm name, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 1st day of June, 1909, upon the verdict of a jury for $9,500, and also from an order entered in said dork’s office'on the 9th day of June, 1909, denying the said defendants’ motion for a new trial made upon the minutes.
    
      Theodore W. Morris, Jr., for the appellants.
    
      Clarence J. Shearn, for the respondent.
   Laughlin, J.:

This is a statutory action to recover for the death of Louis T. Racine, who .was a member of the police force of the city of Mew York, and while in the performance of duty asa patrolman received injuries, at about seven twenty-five o’clock in the evening of the 8th day of December, 1906, through the alleged negligence of the' appellants, from which he died.

The decedent was patroling on his beat, which embraced the premises Mo. 10 Vestry street, and discovered a door leading from the sidewalk into the building ajar, and summoned the patrolman on an adjoining beat and the two proceeded to search the premises and to secure the' door, pursuant to general instructions given to them by their superior officers. The two officers approached the door, the decedent being a few feet in advance of his fellow-officer. The door was well ajar. The decedent stepped up to it, pushed it further open and stepped inside and as he did so he fell out of sight of his companion. The building was dark and while this appeared to be a passageway from the street into the building, it was in fact an opening from the sidewalk into an unguarded elevator shaft. The elevator at the time was at the floor above and the gate at the street floor, instead of being down and barring the entrance, was suspended some distance above the floor and supported by a nail in a post at one corner of the elevator. There were two doors opening onto the street extending the whole width of the shaft of the elevator, one of which folded up in two parts, leading from the elevator onto the sidewalk and evidently extending down to the platform underneath or floor of the building. They were very close to the front of the building. There was a space between the opening into the elevator shaft and the doors when closed of two feet and evidently the floor or platform which extended to the street under the doors extended back to the elevator shaft. The appellants were in possession of the entire building under a lease for three years, made on the 1st day of May, 1906, and were conducting thereon the business of wholesale dealers in glass. Glass was loaded onto the elevator from trucks in the street through these doors and was taken to the different stories of the building and likewise was removed from the building in the same manner. The accident occurred after business hours and after the employees of the appellants had departed for the day. It is very doubtful, I think, whether the appellants violated any duty which they owed the decedent at common law. He was neither in their employ nor was he on the premises by their invitation, at least riot an express invitation. It was his duty as a member of the police force to protect life and property (Greater N. Y. Charter [Laws of 1901, chap. 466], § 315, as amd. by Laws of 1905, chap. 621), and it appears that he and his fellow-officers had received general instructions from their superior officers with respect to premises where doors were found open, which he was attempting to carry out at the time he lost his life. The court erroneously excluded the rules of the police department imposing duties upon the members of the force with respect to vacant premises ; but sufficient appears and might'be inferred if it did not appear, to show that the deceased' officer was on the premises in the performance of official duty. He, therefore, was not a trespasser and was a licensee, if not by an implied license from the owner, then by operation of law through public necessity, which requires that policemen and firemen, in the performance of their duties, may lawfully enter upon private premises even against the protest of the owner. (Cooley Torts [3d ed.], 648; Gibson v. Leonard, 143 Ill. 182,190.) The general rule of law now well settled in this jurisdiction is that the owner of private premises owes no .duty of active, vigilance to a mere licensee upon his premises, without invitation express or implied, and does not owe to him the duty of even ordinary care with respect to the condition of his premises or buildings or other structures or machinery thereon. (Nicholson v. Erie R. Co., 41 N. Y. 525 ; Sutton v. N. Y. C. & H. R. R. R. Co., 66 id. 243 ; Larmore v. Crown Point Iron Co., 101 id. 391 ; Sterger v. Van Sicklen, 132 id. 499 ; Cusick v. Adams, 115 id. 55 ; Victory v. Baker, 67 id. 366 ; Splittorf v. State of New York, 108 id. 205.) He does, however, owe the duty to such a licensee, not only to refrain from either intentionally or willfully injuring him while thus lawfully on the premises, but he is liable for personal injuries caused by affirmative acts of negligence on his part or on the part of his employees which result in injury to such licensee. (Byrne v. N. Y. C. & H. R. R. R. Co., 104 N. Y. 362; Barry v. N. Y. C. & H. R. R. R. Co., 92 id. 289; Walsh v. F. R. R. Co., 145 id. 301.) Both as to such licensees and even as to those who are innocently but technically trespassers upon his premises; he owes the further duty to refrain from setting pitfalls, spring guns or traps, or having machines inherently dangerous, or vicious animals loose upon the premises, as the law values human life too highly to permit a property owner to thus endanger the lives of persons lawfully or accidentally upon his premises, even, though the purpose of the owner was to protect his property against trespassers. (Larmore v. Crown Point Iron Co., supra.) It is quite clear,. I think, that under none of these rules of law is a liability established-against these appellants. Another rule of law is that no person is at liberty to construct, maintain or suffer a dangerous excavation on his premises in-close proximity to. a public way by which those lawfully Using the public way and in the exercise of proper care may receive injuries therefrom (Beck v. Carter, 68 N. Y. 283), but as the officer did not go upon the premises accidentally while in the exercise of his right to use the public way, it is difficult to perceive how there would be a liability arising upon this theory, because a duty may only be invoked by those for whom it is en joined. (Harty v. Central R. R. Co. of New Jersey, 42 N. Y. 468.) An owner of property used for business purposes is under a duty to those lawfully coming upon .the premises to exereise reasonable care to keep the approaches to his office or place of business in a reasonably safe condition for travel (Larkin v. O'Neill, 119 N. Y. 221; Hart v. Grennell, 122 id. 371; Macauley v. Mayor, etc., 67 id. 602 ; McRickard v. Flint, 114 id. 222); but the police officer was not a customer and he was not entering the premises on business of the appellants. He was there in the performance of a public duty which might have incidentally concerned the appellants, as, for instance, .if people were wrongfully on the premises for the purpose of setting a fire or committing burglary or any other crime or liable to come there for any such purpose during the remaining part of the night. Thompson, in his Commentaries on the Law of Negligence (Vol. 1 [2d ed.], § 981), apparently considers certain cases decided by the Supreme Judicial .Court of Massachusetts as establishing the rulé that a policeman in the performance of his duty enters upon private premises by an implied invitation, but the cases cited do not, I think, fully sustain that proposition. There are numerous decisions of the courts of this State to the effect that firemen on private property in the performance of their duties are mere licensees. (Eckes v. Stetler, 98 App. Div. 76; Baker v. Otis Elevator Co., 78 id. 513.) There is no logical distinction between the rights of a fireman and a policeman on private premises in the performance of duty, and I am of opinion that they are both licensees by operation of law, bnt may not be said to be upon the premises by invitation of the owner, express or implied. This leads to the conclusion, therefore, that this action cannot be sustained upon the principles of the common law. I am of opinion, however, that it can be sustained upon the theory that the Legislature, by authorizing the enactment of the Building Code by the board of aldermen of the city of New York, and by subsequently ratifying the provisions thereof, has added to the duties which the defendant owed to the decedent at common law a further duty which they violated and upon which negligence may be predicated. Section 95 of the Building Code provides as follows: .

“ In any building in which there shall be any hoistway or freight elevator or wellhole not inclosed in walls constructed of brick or other fireproof material and provided with fireproof doors, the openings thereof through and upon each floor of said building, shall be provided with and protected by a substantial guard or gate and with such good and sufficient trapdoors as may be directed and approved by.the Department of Buildings; and when in the opinion of the Commissioner of Buildings having jurisdiction, automatic trapdoors are' required to the floor openings of any uninclosed freight elevator, the same shall be constructed so as to form a substantial floor surface when closed and so arranged as ,to open and close by the action of the elevator in its passage either ascending or descending.' The said-Commissioner of Buildings shall have exclusive power and authority to require the openings of hoistways or hoistway shafts, elevators and wellholes in buildings to be inclosed or secured by trapdoors, guards or gates and railings. Such guards or gates shall be kept closed at all times, except when in actual use, and the trapdoors shall be closed at the close of the business of each day by the occupant or occupants of the building having the use or control of the same.”

We are not concerned with the question as to whether there was legislative authority for the enactment of this Building Code by the board of aldermen, or whether, as a mere enactment of the board of aldermen a duty could be imposed, the failure to perform which would give rise to a cause of action upon which question the decisions are not in accord (see Fuchs v. Schmidt, 8 Daly, 317 ; City of Rochester v. Campbell, 123 N. Y. 405, and Koch v. Fox,71 App. Div. 288), for after its enactment the Legislature expressly ratified it and it now has the force and effect of a statute. (City of New York v. Trustees, 85 App. Div. 355, 361 ; affd. on opinion below, 180 N. Y, 527; Kenney v. Brooklyn Bridge Stores Co., 121 App. Div. 684.) This elevator shaft was not inclosed .by brick walls or walls constructed of other fireproof material and it had no fireproof doors. It, therefore, falls within the other provisions of the section. It is evident from the provisions- of this section of the Building Code that it was intended for the protection of policemen, firemen and others lawfully on the premises; and the ■duty is expressly enjoined upon the occupant of the building having the use and- control of the same, to see that the guards or gates shall be kept closed at all times except when in actual use, and that the trapdoors shall be closed at the close of business eacli day. This enactment, I think, enjoined a duty on the part of the appellants for the benefit of any person lawfully upon the premises; the board of aldermen and the -Legislature had in mind that policemen and fire- ■ men might lawfully be called to the premises in the performance of their duty and receive injuries whielr these provisions of the law were intended to guard against. Where the Legislature enjoins a duty and creates a cause of action for its violation, tlién the remedy given by the statute is exclusive (Eckes v. Stetler, 98 App. Div. 76), but in the case at bar a duty has been enjoined and neither the local nor the State Legislature has attempted to prescribe a remedy in so far as it relates to redress for personal injuries. There are many cases, however, where there is no violation of a common-law duty in which the Legislature has imposed a further statutory duty, and a violation of such duty resulting in injury to persons for whose benefit it was intended is regarded as giving rise to an action for damages the same as if it were a common-law duty. Such are the actions for damages caused by a failure to perform the statutory duty of erecting and maintaining fire escapes ( Willy v. Mulledy, 78 N. Y. 310; Pauley v. S. G. & L. Co., 131 id. 90; Huda v. American Glucose Co., 154 id. 474), failure to conform to the requirements of law with respect to guarding elevator shafts (McRickard v. Flint, 114 N. Y. 222) and the violation of a duty imposed by the Labor Law and the Employers’ Liability Act so-called. The only 'apparent exceptions to this rule arise on the construction of the statutes with respect to the persons for whose benefit the same were enacted. Such are the cases holding that an abutting property owner is not liable to a person injured or liable over to the city for his failure to construct or repair or remove snow and ice from a sidewalk. (City of Rochester v. Campbell, 123 N. Y. 405; Moore v. Gadsden, 93 id. 12; Village of Fulton v. Tucker, 3 Hun, 529.) The decisions in those cases go upon the theory that the primary duty of keeping the sidewalks in repair and free from dangerous accumulations of snow and ice rests upon the municipality, and that the Legislature did not intend to shift that primary duty to the property owner, but merely to render him liable to a fine or .to an action for reimbursement for the expense of- doing the work. Here, as I view the provisions of the Building Code in question, they constitute not merely a police regulation, a violation of which is punishable by a fine, but they were intended to enjoin a duty for the benefit of those lawfully upon the premises. There is an apparent conflict in authority in other jurisdictions on this precise question but it will be found on examination to- arise on the construction of statutes rather than on the authority to enact them. In Bhode Island it has been held that the failure to perform such a statutory duty does not give rise to a cause of action in favor of a fireman (Beehler v. Daniels, Cornell & Co., 19 R. I. 49), but the theory of the decision is that the duty was not enjoined' for the benefit of firemen. Likewise, upon the same theory* it has been held in Illinois (Gibson v. Leonard, 143 Ill. 182) that án ordiance with respect to an elevator was not intended for the benefit of firemen, and that its violation did not give rise to a 'cause of action. On the other hand, it has been held in Massachusetts, on facts not distinguishable from those in the case at bar, that a similar statutory provision was intended for the benefit of .policemen lawfully attempting to come upon the premises,, and that a failure to comply therewith was a failure to -perform a duty, the neglect to perform which gives rise to a cause of action. (Parker v. Barnard, 135 Mass. 116. See, also, Learoyd v. Godfrey, 138 id. 315.)

The case of McRickard v. Flint (114 N. Y. 222), while not exactly in point on the facts, tends to support the theory of liability in this case.. There, the plaintiff called at the defendants’ factory to see one of the defendants on business. It does not appear just what the business was. It is possible that the circumstances were such that there was an implied invitation, but tlie court did not decide the case upon that theory. It held that a statute requiring the protection of the openings leading to the elevator on each floor, and that trapdoors be provided and be closed when the elevator was not in use, was designed for the benefit of any person lawfully upon the premises, and that its. violation constituted friona facie evidence of negligence upon which a recovery could be had; Of course the violation of-the statute does not create a cause of action in the sense that a recovery may be had on account of the mere violation. It imposes a duty, a violation of which is prima facie evidence of negligence, and, while, not conclusive, is sufficient to take a case to the jury and to sustain a recovery upon the theory of negligence. Eo other point requires consideration.

I am of opinion, therefore, that the judgment is right and should be affirmed.

Ingraham, P. J., and Clarke, J., concurred; Scott and Miller, JJ., dissented. .

Scott, J. (dissenting):

This is an appeal from a judgment for damages for the death of plaintiff’s intestate, who was a policeman in the city of Hew York. The appellants are the lessees and occupants of á building known as Ho. 10 Vestry street, in which they carried on a wholesale glass business. At one corner of this building there was an elevator shaft, entirely separated and inclosed from the rest of the building by wooden and glass partitions extending from the basement to the top floor, and in which there were doors leading from the shaft to the several floors of the building. At the street level there were doors the whole width of the shaft leading from it to Vestry street, but not otherwise furnishing access to the interior of the building. The elevator was used for the purpose of receiving and shipping freight, and transporting it from one floor of the warehouse to another. On December 8, 1906, when patroling his beat, between seven and eight o’clock in the evening, the deceased noticed that one of the doors leading from the street into the elevator shaft was ajar. He apparently did not know where the door led, and, doubtless, supposed that it led into the' building, for he pushed the door open and stepped through it, being precipitated to the bottom of the shaft and receiving the injuries from which he died. At this time the building was vacant and unlighted and had been for some hours. The elevator car or platform was standing at the second story, the power, which was furnished from outside, having been turned off. A gate had been provided to guard the entrance to the shaft from Vestry street when the doors were opened. This gate was so arranged that it could be pushed up, out of the way, and when so pushed up was kept in place by a wire nail stuck into the woodwork, which could be easily removed when it was desired to lower the gate. At the time of the accident the gate was pushed up and secured. There is no question as to how the accident happened, nor as to the reasonableness of the verdict, the only question being whether upon the undisputed facts the plaintiff is entitled to recover.

It must be conceded that, under the circumstances, no liability would attach to the defendants at common law. Admitting that decedent was acting in the line of his duty, and, therefore, was not a mere trespasser, it cannot be said that he went upon the premises' by invitation, or that he was, at the best, more than -a licensee. (Cooley Torts [3d ed.], 1268; Baker v. Otis Elevator Co., 78 App. Div. 513; Eckes v. Stetler, 98 id. 76.) The plaintiff insists, however, that even if the common law imposed no duty upon the owner of the premises to keep them safe for the benefit of mere licensees, yet the Building Code of the city of Hew York does impose such an obligation, and that its violation justifies the present judgment.

The following is the section of the code relied upon : “ Sec. 95. Elevators and Hoistways.—In any building in which there shall be any hoistway or freight elevator or well hole not inclosed'in walls constructed of brick or other fireproof material and provided with fireproof doors, the openings thereof through and upon each floor of- said building, shall be provided with and protected by a substantial guard or gate and with such good and sufficient trapdoors as may be directed and approved by the Department of Buildings; and when in the opinion of the Commissioner of Buildings having jurisdiction, automatic trapdoors are required to the floor openings of any un in closed freight elevator, the same shall be constructed so as to form a substantial floor surface when closed and so arranged, as to open and close by the action of the elevator in its passage either ascending or descending. The said Commissioner of) Buildings shall have exclusive power and authority to require the openings of. hoistways or hoistway shafts, elevators and wellholes in buildings to be inclosed or secured by trapdoors, guards or gates and railings, Such guards or gates shall be kept closed at all:times, except when in actual use, and the trapdoors shall be closed ¡at the close of the business of each day by the occupant or occupants of the building having the use or control of the same.”

This ordinance was adopted by the board of aldermen pursuant to legislative authority. (Laws of 1897, chap. 378, § 647 ; Laws of 1901, chap. 466, § 407; Laws of 1904, chaps. 602, 628, § 2.) Similar provisions enacted in prior acts of the Legislature were repealed (Laws of 1874, chap. 547, § 5; Laws of 1882, chap. 410, § 453 ; Laws of 1892, chap. 275, § 28), and the Building. Code thereafter had the same force within the corporate limits of the city as a statute passed by the Legislature. (City of New York v. Trustees, 85 App. Div. 355 ; affd. on opinion below, 180 N. Y. 527; Kenney v. Brooklyn Bridge Stores Co., 121 App. Div. 684.) It is,, however, not a statute, but merely a municipal ordinance. (Schnaier & Co. v. Grigsby, 132 App. Div. 854.) It is not necessary to consider whether a municipality may, by ordinance, create a right of action between individuals, because the ordinance in question does not purport or undertake to do so. It imposes a duty upon the occupants and owners of certain premises, and specifies the penalties that shall attach in ease of violation. (See Building Code, §§ 156-158.) It is well settled, of course, that where a duty exists irrespective of the ordinance, the violation of an ordinance enacted to regulate the performance of that duty is competent evidence of negligence in such performance! The question at issue, therefore, turns » upon whether or not, irrespective of the ordinance, the appellants owed to deceased any duty of safeguarding their premises. That question seems to be answered so far as this department is concerned by Eckes v. Stetler (supra). In that case a fireman, who was upon the defendant’s premises in the lawful performance of his duty of extinguishing fires, was injured in consequence of the failure of the defendants to comply with a statute (Laws of 1882, chap. 410, § 453) requiring all hoistways, wellholes, trapdoors and iron shutters to be closed at the completion of the business of each day. The statute expressly provided for compensation to be paid in case any officer of the fire department should be killed or injured in consequence of a failure to obey the requirement of the act, such compensation to be recovered “ in an action to be instituted by said board ” (of fire commissioners). The plaintiff elected to sue in his own behalf and not through the fire commissioners, and this squarely raised the question whether the law gave him a right of action other than the vicarious right especially prescribed. This court held that it did not; that, aside from the statute, the defendant owed liiin no duty to safeguard the interior of the building; that the statute imposed no such duty as between the plaintiff and the defendant which of itself gave a right of action, and that since, apart from the statute, it was not culpably negligent to leave the hoistway uncovered, the failure to cover it, although contrary to law, was not evidence of negligence. That no common-law duty rests upon' an owner of a building to take any particular steps to protect a licensee who comes upon it without invitation was also held in Baker v. Otis Elevator Co. (78 App. Div. 513). There are undoubtedly cases in which the failure to observe a law or ordinance similar to the ordinance invoked herein has been deemed to be an important element of a right to recover, but in each one, at least so far as concerns this State, there has been, back- of the violated law., a duty to the person injured,, and the violation of the law has been considered evidence .of the failure to perform that duty. In McRickard v. Flint (114 N. Y. 222) the plaintiff was upon defendants’ premises pursuant to an implied invitation, coming -there during business hours upon a matter of- business. To him the defendants owed a common-law duty of care, and the violation of the statute was" evidence of a failure to observe that duty. So, in Pauley v. S. G. & L. Co. (131 N. Y. 90), the defendant owed" to its employees the duty of furnishing'reasonably safe means, of egress, and the requirement that fire escapes should be provided was one regulating the performance of that common-law duty, and its .disobedience constituted negligence in that regard. The same distinction is to be observed in all of the cases relied upon by .the plaintiff. From a comparison of the cases cited upon both briefs we are impelled to concur with the proposition contended for by-the" appellants that the violation of the ordinance (assuming it to have all the force of a statute) will furnish evidence of the violation of a common-law duty, but that it is the neglect of such duty and not the violation of the ordinance which gives rise to the cause of action.. ’ Consequently, if there be no common law duty, no cause of action can be predicated upon the violation of the ordinance.

It follows that the judgtnent and order should be reversed' and. a new trial granted, with costs to the appellants to abide the event., •

Miller, J., concurred.

Judgment and order affirmed, with costs.  