
    Emma McGrell, as Administratrix, etc., App’lt, v. Buffalo Office-Building Company, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    Negligence—Elevators—Question for jury.
    The questions whether injuries to plaintiff's intestate were caused by-defective construction of defendant’s passenger elevator, and whether the operator of such elevator, before starting it, should warn a passenger of the age of nine and-a-half years as to how to protect herself from injury, are for the jury.
    Appeal from a judgment, entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, made on the minutes.
    
      Wallace Thayer, for app’lt; O. M. Bushnell and Porter Norton, for resp’t.
   Lewis, J.

Plaintiff’s daughter, Maggie May McG-rell, was killed while -riding in an elevator in defendant’s building, in the city of Buffalo, on the 23d day of April, 1894; and this action was brought by her mother, as administratrix, to recover the damages sustained by the next of kin of the deceased by her death. She was nine years and six months old at the time of her death.

The defendant’s building was fireproof, and was occupied for offices. It was eleven stories in height, and had two elevators. Both of them were used for carrying passengers. The one in question was so arranged that it could be used also Eor transporting furniture and safes, and for that purpose the doorway of the car was three feet and eight inches wide, which was wider than would have been necessary, had it been intended for transporting passengers only. It was not provided with a door. The opening into the elevator well on the first floor of the building was but two feet eight wide. The elevator ear was five feet and one inch by four feet ten inches in size. Between the sides of the car and the walls of the shaft there was a space of three-and-a-half inches. The distance from the ground floor of the building to the first floor above was about fifteen feet. The door to the elevator shaft was seven-and-a-half feet high. Above the door was a wrought-iron cornice. The front of the elevator shaft, between the cornice and the first floor above, was constructed of wrought-iron, vertical bars, five-and-a-half feet long, one-quarter of an inch thick, and three-quarters of an inch wide, and which were three-and-a-half inches apart. . They were fastened to each end by a screw. There being no door to the car, there was nothing between the bars and the passenger who might be standing opposite the- opening in the car as it passed the bars.

The elevator was operated by hydraulic power, aud, when in full motion, moved at the rate ol eight feet per second. The plaintiff was employed, at the time of the accident, in an office upon the third floor of the defendant’s building. The deceased was left at home in the morning, and, without her mother’s knowledge or consent, left her home, and went to the defendant’s building, for the purpose of visiting her mother. It was the first time she had ever been in the building, and the first time she had been in an elevator. She went into the rooms of the occupant of the first floor of the building, and made known her wish to go to her mother’s room. She was directed to the janitor or superintendent of defendant’s building. He took her to the elevator upon the first floor, and directed the young man in charge to take her to the plaintiff’s room. The deceased entered the car, and took her place in the back part of it. She was the only passenger. The car was started about one minute after she entered. The conductor was called as a witness by the plaintiff. He testified that Maggie was standing in the corner of the car, as far from him as she could; that after he set the car in motion, and it had reached the top of the doorway in the shaft, the deceased ran forward, and caught hold of the bars of the elevator shaft above described; she was thrown down upon the floor of the car, and her head drawn in between the car and the vertical bars mentioned, the bars bending out sufficiently to allow her head to enter; that he at once stopped the car, but not in time to avert the disaster, and the child was killed.

The conductor was the only witness who described what occurred in the car, and while he insisted that the deceased voluntarily ran across the car, and seized hold of the bars, the manner of her falling, the position in which her body was found upon the floor of the car, showing that she probably took but one step before falling, and other circumstances described by the witness, presented a question of considerable doubt, whether the deceased in fact voluntarily ran across the car, and caught hold of the bars, or, as the car started, lost her equilibrium, and stepped forward, involuntarily, to regain it, and, in her efforts to save herself from falling, caught hold of the bars. There was evidence tending to show that it was a frequent occurrence for passengers to lose their equilibrium in this and other elevators. The conductor testified that he had operated elevators in other buildings in the city, which ran at a less speed than the defendant’s; that it was a frequent occurrence for people to lose their balance in them; that on at least forty occasions he had noticed passengers who were compelled to step about in elevators, in order to maintain an upright position as the car started ; that he had noticed such occurrences in the elevator in.question ; and that on one occasion a passenger in the defendant’s elevator had lost his balance as the elevator started, and fell over against the witness. Other witnesses testified that they had ridden in the elevator in question, and had frequently experienced a tendency to fall forward as the car started. - As the conductor applied the power at the time in question, the car attained its maximum speed when it had moved only about three feet. Ho question is raised as to the competency of the conductor to manage the elevator, nor that the space between the platform of the elevator and the vertical bars was too large.

At the close of the plaintiff’s evidence a nonsuit was granted, and the question presented by this appeal is whether there were any questions of fact which should have been submitted to the jury. Many grounds of negligence on the part of the defendant are urged by the appellant's counsel. It is conteded that the conductor unskillfully operated the car; that there should have been a door to the car; that the front of the elevator shaft should have been a solid wall, instead of the vertical bars; that, under the circumstances, the conductor should have instructed the deceased how to protect herself, and warned her of the danger of her- falling as the car started.

The relations betweeen the owner and manager of an elevator, and his passengers, are similar to those between an ordinary common carrier and those carried by him. There seems to be no reason for any distinction between the two classes of carriers. The dangers incident to the former means of transportation are quite as great, if not greater, than are incident to travel by railways. Ray, in his work on Hegligence of Imposed Duties of Common Carriers (section 96, chap. 17), says:

“There is no employment where the law should demand a higher degree of care, and diligence than in the case of persons using and managing elevators or lifting human beings from one level to another.”

The relations between carriers by elevators and their passengers are discussed in Treadwell v. Whittier, 80 Cal. 574; Mitchell v. Marker, 10 C. C. A. 306; Goodsell v. Taylor, 41 Minn. 207. ‘ It is manifest, from the description of the elevator shaft and car, that there was danger that passengers would come in contact with these stationary, vertical bars, as the car was passing them, and by so doing might receive bodily injuries. Had the car been provided with a door, the accident in question would not have occurred. The conductor was aware that the child was quite likely to lose her equilibrium if he started the car rapidly. He knew, or should have known, that she was to be thrown down on the floor of the car. His observation had taught him that strong adults were liable, as a car starts, to lose their balance, and are frequently compelled to step about in the car, to prevent falling. The evidence tended to show that the conductor started the car on this occasion with its usual rapidity. He was aware that the deceased was a mere child; that she did not possess the ability to care for herself that an adult person would under the ciicumstances. There was no seat or railing in the car, but there were two projections into the body of the car, —one on each side,—which would have afforded a resting place for the child’s hands. Under ordinary circumstances, elevator conductors would not be expected to give instructions to their passengers, but here was a small child alone in the" elevator, and presumably unaccustomed to riding in one; and, under all the circumstances, we are of the opinion that it was a question which should have been submitted to the jury, whether it was not a negligent act on the part of the conductor to start the car at its full speed without first warning the deceased, and giving her some instructions as to how to protect herself. It was also a question for the jury whether the omission to provide, the elevator car with a door, under the! circumstances, was not evidence of negligence on the part of the defendant.

The judgment and order appealed from should be reversed, and a new trial granted; costs to abide the event.

All concur.  