
    Laura C. Cunningham, as Executrix, etc., of William B. Cunningham, Deceased, Respondent, v. Mutual Reserve Life Insurance Company, Appellant.
    Second Department,
    April 24, 1908.
    Landlord and tenant —negligence — death by fall down elevator shaft — lease construed — negligence of operator —• damages.
    A lease made out on a printed form furnished by the landlord must be construed most liberally in favor of the tenant, and a clause which exempts the landlord from liability “for damage to either person or property occasioned by the elevators, boilers, machinery or anything pertaining thereto, th.e risk of- such damage being assumed by the tenant,” will not be held to grant immunity to the landlord from the negligence of a servant in charge of the elevator.
    In an action to recover damages for the death of a tenant killed by falling down an elevator shaft, evidence tending to show that the accident was caused by the negligence of the elevator man in starting the elevator as the deceased was about to step upon it examined, and held, that a verdict for the plaintiff was justified.
    A verdict of §40,000 for negligence causing the death of aman who contributed from §8,000 to §10,000 a year to the support of his family, consisting of himself, his wife and three infant daughters, is not excessive.
    Appeal by the defendant, the Mutual Reserve Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in.the office of the clerk of the county of Kings on the 24tli day of May, 1907, upon the verdict of a jury for $40,000, and also from an order entered in said clerk’s office on the 24th day of May, 1907, as amended by an order entered on the 8th day of June, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      William Hepburn Russell [Charles E. Rushmore and Sewell T. Tyng with him on the brief], for the ajipellant.
    
      John C. Robinson, for the respondent.
   Miller, J..

The plaintiff’s testator, a middle-aged man in good health, earning as much as $10,000 a year, and contributing from $8,000 to $10,000 to the support of his family, consisting of himself, his wife, and three infant daughters aged respectively seventeen, fifteen and fourteen, met his death on the 21st day of July, 1904, as the result of an accident which a jury has found was due to the negligence of the defendant’s servant, and for which it has awarded the sum of $40,000 damages.

The deceased was a tenant of the defendant. His death resulted from a fall down an elevator shaft from the ninth floor of defendant’s building, qn which floor he had an office. The evidence tends to show that the deceased was waiting to take the elevator, which was déscending; that in its descent the elevator stopped at the ninth floor, and as the deceased was about to step upon it it suddenly started up and he was precipitated down the shaft. While the learned counsel for the appellant criticises the testimony of the witnesses tending to show this, there is really little dispute about it. A witness called by the plaintiff testifies to it, and the operator of the elevator, called as a witness by the defendant, corroborated that version of the transaction, although it appeared that he had previously made an affidavit giving a different version. Besides, the surrounding circumstances tend to support that version of the occurrence. Immediately after the deceased had fallen and during his descent the elevator door was observed to be open, and the bottom of the car was seen coming to a stop a foot or two below the tenth floor. The doors to the shaft could only be opened from the elevator. The elevator and its appurtenances were examined immediately after the accident and found to be in perfect order, and the elevator was continued in use without a change of any kind. The testimony of the operator of the elevator, called by the defendant as aforesaid, is very unsatisfactory. He admitted starting the elevator himself and then retracted the statement. He was a relief man, and says he had not been used to elevators operated by a lever as this one was. The sole question submitted to the jury respecting the defendant’s negligence was whether the accident was due to the negligence of the man in charge of the elevator. I think the evidence amply supports the finding that it was, and, indeed, no other satisfactory account of the occurrence is suggested.

The defendant had printed forms of leases which it made with its tenants. Said leases contained the following provision, viz.: “ The said lessor will have in operation in said building passenger elevators, which- are to be run during the ordinary business hours of every business day of the year, but not during public holidays or Sundays, it being however distinctly understood and agreed that said lessor shall not be liable for damage to either person or property occasioned by the elevators, boilers, machinery or anything appertaining thereto, the risk of such damage being assumed by the tenants.” The appellant contends that that provision exempted the defendant from liability for the negligence of the man in charge of the elevator. It is unnecessary to decide whether the strict rule of construction applied to contracts exempting common carriers from liability applies to this case, for under the rule of Gillet v. Bank of America (160 N. Y. 549) the lease in question must be construed most liberally in favor of the tenant, and thus construed the language used does not admit of a construction which would grant immunity for negligence -of the man in charge of the elevator. The accident in this case was occasioned by him, not “ by the elevators, boilers, machinery or anything appertaining thereto,” for it can hardly be contended that the man in charge was an appurtenance.

Point is made that the court erred in not allowing the defendant to cross-examine the witness Magee, who surprised counsel by giving testimony contrary to the sworn statement which he had previously made. This point is not raised by an exception, and the record discloses that the court did permit the counsel to cross-examine his witness at length. Certain suggestions were made by the court and acquiesced in by counsel. It certainly would be unjust to deprive the plaintiff of her verdict simply because the witness principally relied upon by the defendant surprised its counsel by giving testimony in support of the plaintiff’s case.

There was sufficient evidence to sustain the verdict and we cannot say that it was excessive. While the plaintiff omitted to prove the exact age of the deceased it does appear that he had sufficient expectancy of life to sustain the verdict awarded in view of the proof of his earning power and the amount contributed by him to the support of his family. He maintained for them a home at Upper Montclair, M. J., worth $20,000, which, lie owned, and a summer residence at Saybrook, Conn. His three infant daughters lost not only what he contributed to their support, but the pecuniary value oí a father’s advice and care.

The judgment should be affirmed.

Present — Woodward, Jenks, Hooker, Gaynor and Miller, JJ.

Judgment and order unanimously affirmed, with costs.  