
    Giuseppa Ingrafia, as Administratrix, etc., of Santa Cancialosa, Deceased, Respondent, v. Leopold Samuels, Appellant.
    
      Negligence — injury on an elevate»’ which starts, after the operator has stepped out of it, and crushes a passenger — cha/rge as to the shares of the next of kin in any verdict—as to not considering those next of kin as to whose condition no proof was given.
    
    In an - action to recover damages resulting from the death of the plaintiff's-intestate, who was killed while attempting to leave an electric elevator in the defendant’s building, -it appeared that the elevator was operated by means of a rope passing through a corner of the car, and that, to start the elevator, it was necessary to pull the rope-with a force of about twenty-five pounds until it moved at least twenty-six inches; that on the day of the accident the intestate and two other passengers rode in the elevator from an upper floor of the building to the ground floor;, that after the elevator man had stopped the elevator at the ground floor he left the rope and opened the gate of the car and walked, in advance of the passengers, across the hall for the purpose, as he stated, of looking for somebody with freight; that after he had gone about ten or twelve-feet he heard a scream behind him, and turning saw the elevator moving upward; that he returned to the shaft, grasped the rope and pulled, but that before he succeeded in stopping the elevator the intestate was caught between the car and the first landing and killed.
    The intestate'was directly behind the elevator man when he left the car, and she was the only passenger who had started to leave the car when the elevator moved. None of the passengers in the car had touched the rope after the elevator man left, and it was not explained why the elevator, which was found: to be in perfect running order after the accident, moved. It did not appear whether or not persons could reach into the shaft and pull the rope, or whether if the gates or doors on the upper floors were closed, they could be readily opened from without.
    
      Held, that the evidence warranted'one of two inferences, either that owing to the construction of the shaft, the rope could be reached and pulled on any floor, or else that the elevator man had left the gates or doors on one of the other floors open when he brought the elevator car down;
    That, in either case, there was danger that some one on another floor would start the car; and it was, therefore, the elevator man’s duty to remain in the car and near the rope until his passengers were safely landed;
    That, having deliberately left the car before the passengers were safely out of it, it was a question for the jury whether his conduct in so doing was negligent or not.
    Upon the trial it appeared that the intestate left a husband who conducted a boot blacking establishment, and a father, mother and brother, whose circumstances were not stated. The court charged, in the language of the statute, that ‘ ‘ The damages awarded to the plaintiff may be such a sum * * * as the jury * * * deems to be a fair and just compensation for the pecuniary injuries resulting from the decedent’s death, to the person or persons for whose benefit the action is brought.”
    
      Held, that it was not error for the court to decline to advise the jury of the proportions of the award which the husband, father, brother and mother of the intestate would receive;
    That, sufficient proof having been given of the condition and situation of the intestate to justify an award of damages, the court properly refused to charge “ that there having been no proof offered as to the condition and the circumstances of the next of kin,” they were justified “in passing them over altogether in the consideration of damages; ”
    That a verdict of §4,000 was not excessive
    Yah Brunt, P. J., dissented.
    Appeal by the defendant, Leopold Samuels, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of November, 1901, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 16th day of December, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    The plaintiff as administratrix seeks to recover for the death of her daughter who was killed on the morning of February 27, 1901, while attempting to leave the elevator at the ground floor of the defendant’s building No. 53 East Eleventh street, owing to its suddenly starting upward and catching her between the car and the first landing.
    
      The defendant’s premises were provided with an electric elevator so constructed as to carry both passengers and freight and was operated by a rope passing through the southwest 'corner of the car, which, on the lower floor, opened towards the north by a folding iron gate into a hallway leading to the street. On the upper landings there were doors on the west side near the rope. The car used for passengers measured on the inside three feet ten inches by four feet ten inches^ the latter measurement apparently being from the north to the south side. To start the elevator it was necessary to pull , the rope with a force of about twenty-five pounds until it moved at least twenty-six inches in order to put on the power. At the ground floor there was an automatic stop, and the operative mechanism was designed to permit the attendant leaving the rope and car if so desired. No difficulty had been experienced with the elevator, which had been installed for about three years and was expected to last for fifteen, and after the accident an inspector found the mechanism in perfect working order. The man in charge of the elevator had been employed by the defendant in that capacity for over a year.
    On • the morning in question, the plaintiff’s intestate, a woman twenty-six years of age, in good health, employed previously at the rate of about seven dollars a week by manufacturers of clothing who were on the sixth floor of the building, went up there in the elevator accompanied by her husband, to collect salary due her. Subsequently the elevator came to take them down, and- they entered the car and went to the opposite side. There was a stop at the fifth floor when a peddler entered carrying a large basket, and the car then descended with the four people to the ground floor. There it was stopped by the elevator man, who then left the rope, crossed to the north side of the car and went in front of the passengers to throw open the folding gate, which was nearly the width of the car, to permit their exit. At that moment the woman was behind- the elevator man, and her husband behind and' to one side of her and back of the husband was the peddler with the basket, all facing the gate. The elevator man threw aside the gate, stepped out and went across the hall at a walk towards the outside door where a man was standing. He .says' he was looking for someone with freight, and it was testified that he was calling out and whistling. When he had gone about ten or twelve feet, he heard a scream behind him, and, turning, saw the elevator moving upwards. He returned to the shaft, grasped the rope and pulled, but, before stopping, the car went three or four feet further and the woman was caught by the wall and killed.
    It was testified that the car moved slowly at first, and then shot upward, and only the woman, who was about to step out, was injured, the men remaining in the car. The peddler testified that he had not touched the rope, and no one else in the car was in a position to do so. Why the elevator moved, was not explained.
    The deceased left a husband, who has a shoeblacking establishment, and a father, mother and brother whose circumstances were not stated. In charging the jury the court, after referring to the statute permitting an administrator to sue, said, quoting from the statute itself: (Code of Civ. Proc. §§ 1902-1904) “ The damages awarded to the plaintiff may be such a sum * * * as the jury "" * * deems to be a fair and just compensation for the pecu-' niary injuries resulting from the decedent’s death, to the person or persons for whose benefit the action is brought.” Thereafter the court declined the defendant’s requests to charge that the husband would be entitled to one-half the estate and the father and brother to the other half, and that no proof having been given as to the circumstances of the next of kin, the jury might pass them over in the consideration of damages; and exceptions were duly taken.
    The jury returned a verdict for plaintiff for $4,000, and from the judgment so entered the defendant appeals.
    
      Charles A. Wendell, for the appellant.
    
      John Palmieri, for the respondent.
   O’Brien, J.:

The evidence shows that the elevator was in perfect running order and that it could not have moved from the position where the operator left it unless some one had pulled the rope persistently and- with considerable force, thus making the connection with the electric motor. The testimony is no less conclusive that none of those in the car had touched the rope, for the peddler testified that he did not, and he separated from it the others who he says were facing outward. By elimination, thérefore, of other-causes, the only reasonable conclusion is that the elevator was-set in motion by some one on another floor reaching into the shaft and pulling the rope. On the lower floor, as stated, there was provided a folding gate, and on the other floors there was either gates, or doors, how constructed or how fastened does not appear. Neither does it appear whether or not one could reach into the shaft and pull the rope, or whether if the gates or doors were closed, they could be readily opened from without. One of two inferences, however, may be drawn, either that the rope, owing to the construction of the shaft, could be reached and pulled on any floor or else that the operator had left the gates or doors open when he brought the ele-, vator car down. In either case there was danger of some one on another floor starting the car, and, therefore, the duty devolved on him of remaining in the car and near the rope until his passengers were safely landed. Imposing such a duty under the circumstances-is but. the equivalent of saying that he was bound to exercise reasonable care.

It is conceded that the elevator man deliberately left the car before the others were safely out of it; and thus there was a question for the jury as to whether his conduct in so doing was negli- • gent or not. . .

That the accident could have been averted had he stayed at his post or even near the elevator is evident, for though he was ten or twelve feet from it and walking in the opposite direction when the car started upward, he was able to return and stop the car when it reached- the floor above, too late, however, to prevent the injury to plaintiff’s intestate. His negligence, therefore, in thus leaving the car and its occupants before they had opportunity to safely alight, in view of his knowledge or means of knowing that such an accident could occur and was to be guarded against, was a failure to observe that reasonable care which, as stated in the recent case of Griffen v. Manice (166 N. Y. 188), is required in. the maintenance and operation of an elevator. Therein the manner and cause of the accident were different, but the rule enunciated by the court is. applicable. It was said: The deceased was present by. the implied invitation of the defendant extended to him (her) and all others who might have lawful business on the premises to use the elevator as a means of proceeding from one story to another. The defendant, therefore, owed the plaintiff the duty of using at least reasonable care in seeing that the premises were safe. * * * That no such accident could ordinarily have occurred had the elevator machinery been * * * properly operated seems to me very plain. The court was, therefore, justified in permitting the jury to infer negligence from the accident, construing, as I do, the term accident to include not only the injury but the attendant circumstances.”

The appellant insists, however, that the court erred in refusing to charge certain requests. The first error assigned was in declining to advise the jury of the proportions the husband, father and brother and mother would receive of any award. In refusing this we think no error was committed for the court had properly charged in the very language of the statute that the damages might be such sum as would be a fair compensation for the pecuniary injuries resulting to the persons for whose benefit the action was brought. It was the duty of the jury to fix this sum and in this they would receive no assistance by instructions Concerning the distribution provided by law.

Bor do we think the court erred in refusing to charge the further request “ that there having been no proof offered as to the condition and the circumstances of the next of kin,” they were justified “ in passing them over altogether in the consideration of damages.” That this request was faulty and was properly refused, a brief review of the authorities will show. What is required is some basis for an award of damages by proof of the condition and situation of the' deceased and of the next of kin. As said in Lockwood v. N. Y., L. E. & W. R. R. Co. (98 N. Y. 526): “ In but few cases arising under this act is the plaintiff able to show direct, specific pecuniary loss suffered by the next of kin from the death, and generally the basis for the allowance of damages has to be found in proof of the character, qualities, capacity and condition of the deceased, and in the- age, sex, circumstances and condition of the next of kin. The-proof may be unsatisfactory and the damages may be quite uncertain and contingent, yet the jurors in each case must take the elements thus furnished and make the best estimate of damages they can. There seems to he no other mode of administering the statute referred to, and protection against excessive damages must be found in the power of courts in some of the modes allowed by law to revise or set aside the verdicts of juries.”

In the case at bar we have given the sex, age, capacity and situation -of the deceased, and as to the next of kin, we have the age, business, occupation and condition of the husband and that the deceased left also a father and brother. There was, therefore, a basis for the award of damages, and the sum of $4,000 was not, under such circumstances, excessive. Although the exact condition of the father and brother was not shown, it would have been error to have passed them over altogether in the estimate of damages.

Thus, in the case of Kelly v. Twenty-third Street Railway Co. (14 Daly, 418), where it appeared that the only next of kin of the deceased were a brother and sister in Ireland and three- nephews in Hew York city, where he carried on the business of junk dealer, and the testimony did not show that he in any way supported these relatives, nor what he earned, nor what the value of his life was to them, it was held that a verdict of $1,000 should not be set aside as excessive. As said by Mr. Justice Finch in Houghkirk v. President, etc., D.& H. C. Co. (92 N. Y. 219): “ The statute implies from the death of the person negligently killed damages sustained by the next of kin. (Quin v. Moore, 15 N. Y. 432.) Recognizing the generally prospective and indefinite character of those damages and the impossibility of a basis for accurate estimate, it allows a jury to give what they shall deem a just compensation * * * They are' required to judge and not merely to guess, and, therefore, such basis for their judgment as the facts naturally capable of proof can give should always be present and is rarely, if ever, absent.. The pecuniary loss in any such case may be composed of very different elements. It may consist of special damages, that is, of an actual, definite loss, capable -of proof and of measurement with approximate accuracy; and also of prospective and general damages, incapable of precise and accurate estimate because of the contingencies of the unknown future.” The learned judge then illustrated special damages by the element of funeral expenses, and continued, “ to permit the jury to guess at their amount as an element of the total loss, would be to substitute conjecture for proof where proof was possible and a proper basis of judgment attainable. But the value of a human life is a different matter. The damages to the next of kin in that respect are necessarily indefinite, prospective and contingent. They cannot be proved with even an approach to accuracy, and yet they are to be estimated and awarded, for the statute has so commanded. * * * The age and sex, the general health and intelligence of the person' killed, the situation and condition of the survivors and their relation to the deceased; these elements furnish some basis for judgment. That it is slender and inadequate is true * * * but it is all that is possible and while that should be given * * * more cannot be required. Upon that basis and from such proof, the jury must judge.”

The request to charge in the form made, in view of the testimony given, was bad and, therefore, properly refused.

We think that the judgment and order appealed from should accordingly be affirmed with costs.

Patterson and Laughlin, JJ., concurred; Van Brunt, P. J., dissented.

Judgment and order affirmed, with costs.  