
    Jambs S. Meng, as Executor, etc., of Henry Bischoff, Deceased, Respondent, v. Emigrant Industrial Savings Bank, Appellant.
    First Department,
    July 9, 1915.
    Negligence — death caused by falling down shaft of passenger elevator — evidence —damages.
    Action to recover for the death of plaintiff’s testator who, as he was about to leave a passenger elevator maintained by the defendant, fell down the shaft. Evidence examined, and held, to establish that the sole cause of the accident was the act of the operator in starting the elevator while the testator stood in such a position as would result in his injury if the car was set in motion.
    The testator being at the time of his death a Supreme Court justice, with six years to serve at an annual salary of $17,500, and having an expectancy of life of fourteen years, and being survived by a widow and two grandchildren, a verdict of $70,000 was not excessive.
    Mere proof of the existence of the grandchildren as bearing upon the question of damages was not harmful error.
    Evidence tending to show the expensiveness of the manner or habit of the testator’s family life was proper as bearing upon the question of damages.
    Since the trial justice referred to the presence of the testator’s widow at the trial, and stated to the jury that they could judge her age by her looks, and no exception was taken to this statement, the defendant cannot raise the question upon appeal that there was no proof of the age or state of health of the testator’s widow at the time of his death.
    Appeal by the defendant, Emigrant Industrial Savings Bank, 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 28th day of December, 1914, upon the verdict of a jury for $100,000, reduced by consent to $70,000, and also from an order entered in said clerk’s office on the 25th day of January, 1915, denying defendant’s motion for a new trial made upon the minutes.
    
      Robert M. McCormick, for the appellant.
    
      Albert Massey, for the respondent.
   Hotchkiss, J.:

This action was brought to recover damages for negligence causing the death of Henry Bischoff, Jr., a j ustice of the Supreme Court in this department. The defendant was the owner of the premises 51 Chambers street, in Hew York city, several of the upper floors of which, including the twelfth and thirteenth floors, were held under lease by the city of Hew York and were used for the purposes of the Supreme Court and the justices thereof. On the 28th of March, 1913, Justice Bischoff came to his death by falling down the shaft of one of the several passenger elevators with which the building, was equipped. The elevator in question was protected by two gates, one called the shaft or “floor” gate, opening directly intq the shaft from the main corridor of each of the several floors of the building, and the other, a collapsible-latticed or “grille” gate, which was attached to the front of the elevator and served as a gate at the point of entrance and exit thereto. The shaft gate was operated by pneumatic power controlled by a “ tripper ” which came up through the floor of the car. When the operator of the car pressed his foot down upon this “tripper” the shaft door would open, and when his foot was removed the door would automatically close. The latticed gate to the car was opened and closed by the hand of the operator. The movement of the car itself was controlled by a hand lever, which being pushed forward or back or brought to “center” would set the car in motion up or down or stop it.

The circumstances of the accident were told by two witnesses for the plaintiff. Berthoud testified that he entered the car at the ground floor of the building, taking a position at the. front of the car and in front of Justice Bischoff, who stood a little way back of him. The car stopped at the eleventh floor to permit Berthoud to alight. After leaving the car, Berthoud had proceeded but a few feet into the corridor when he heard the breaking of glass, and turning around saw a black- derby hat, afterwards identified as belonging to Justice Bischoff, just coming to rest, as though it had dropped on the floor of the corridor. Turning around he saw broken glass falling from the transom or fanlight above the shaft entrance to the elevator, and the heavy glass fanlight, which was covered with wire netting, was bulged out away from the shaft and toward the corridor. Berthond does not say where the elevator was at this time, nor does he say that he then saw Justice Bischoif in the car or elsewhere. Pearl, the operator of the car, first called as a witness for the plaintiff and afterwards for the defendant, testified that after Berthoud left the car he took his foot from the tripper to close the shaft door. “The door was closing, when the Judge made an attempt to get off the car. I saw the door was going to strike the Judge and grabbed at the Judge to stop him being struck with the door. * * * Q. Did you say ‘ shut ’ or ‘shutting ’ ? A. Shutting. Q. It was not shut? A. No, sir. * * * I had hold of' his arm, and he partly turned around when I grabbed him. The door had struck him at the same time. Then Judge Bischoff kind of pulled away from me, making an effort to get out of the door, and the door was holding the Judge at the same time. Then the next thing I noticed, the car had gone up, and the Judge was going to be caught under the top of the door and the floor of the car * * *. I thought the best thing was to hold the Judge, and turned around to stop the car; and when I turned around to stop the car I heard a crash at the same time, and when I turned back to see what the crash was, the Judge had gone. I had ahold of the Judge’s arm, and it was tom away from me. Then I turned around and stopped the car immediately.” The door was about half closed. “ Q. Had the elevator started at that time ? A. No, sir. Q. And you state that the Judge was passing you? A. Yes, sir. * * * Q. When you took hold of him had the car started? A. No, sir; not that I know of.” The witness further testified that when the Judge started to leave the car, his hat was on his head. On cross-examination, with evident reluctance and only after he had been confronted with the written evidence of statements he had made to the district attorney immediately after the accident, he testified that at the time of the accident the collapsible gate was wide open; that the shaft gate was not fully closed, and that in this situation the car had been started upward by him involuntarily and-unintentionally, his hand then being on the lever which controlled its operation. Immediately after the accident Justice Bischoff’s dead body was found at the bottom of the shaft. It was also discovered that a portion of the pneumatic apparatus which operated the shaft gate and was attached to the face of the space between-floors on the inside of the shaft below the transom, and some distance above the top of the car when the car stood at rest with its floor even with the floor of the corridor, was bent upward, and also that the angle iron which supported a portion of the apparatus operating the automatic indicator and which angle iron was similarly attached, was also bent upward.

The learned trial court left to the jury the questions of defendant’s negligence and of contributory negligence on the part of Justice Bischoff. I think this was proper. It is evident that the evidence justified a finding that at the moment immediately before the car started, Justice Bischoff stood in a position from which no danger was to be apprehended, except such as might result from his becoming impinged by the closing gate of the shaft. The fact that he was attempting to leave the car through the closing gate is not .material, because, concededly, he did not succeed in so doing before the car started. The jury was thus justified in also finding that the sole cause of the accident was the act of the operator in starting the car while Justice Bischoff stood in a position of safety, assuming the car had remained at rest, but in such a position as would almost inevitably result in his injury if the car was then set in motion and so continued until it reached the obstacles which, projected into the shaft from above. The jury’s verdict in favor of the plaintiff was in the sum of $100,000, which the trial court reduced to $70,000. The defendant complains of this as excessive. The evidence on the question of damages showed that Justice Bischoff left a widow, but no children; his only heirs and next of kin being two grandchildren, children of a deceased daugh ter. Whether, under the Code of Civil Procedure (§ 1902 et seq.), these grandchildren have any interest in the sum recovered by the plaintiff is a question to be determined when distribution of any such recovery is to be made. It is not involved on this appeal. It is clear, however, that in any event, the mere proof of the existence of grandchildren was not harmful error. At the time of his death Justice Bischoff was sixty years and seven months of age, and his term of office would not expire for nearly six years, during which period, if living, he would have been in receipt of a salary of $17,500 per year. It was shown by the tables that his expectancy of life was approximately fourteen years. Proof was also given tending to show the expensiveness of the manner or habit of his family life and living, all of which facts were unquestionably proper as a basis for the jury to form their judgment of the pecuniary loss suffered by those who under the statute were injured by his death. (Houghkirk v. President, etc., Delaware & Hudson Canal Co., 92 N. Y. 219, 225; Mix v. Hamburg-American Steamship Co., 85 App. Div. 475; Sternfels v. Metropolitan Street B. Co., 73 id. 494, 498 et seq.; affd., 174 N. Y. 512.) In his argument on this appeal, counsel for the defendant raises the point that there was no proof of Mrs. Bischoff’s age at the time of her husband’s death, or of her state of health at that time. If this objection had any force (and I do not mean to infer that it had), it cannot be raised now for the first time. The evidence showed that Mrs. Bischoff was present in court at the trial. In his charge the learned trial justice referred to this fact and said to the jury: “If she is in court, possibly you can judge about her age by her looks.” No exception was taken to this, nor was the court asked to make any other or different charge upon the subject. Mrs. Bischoff’s apparent age and state of health could be visually perceived and from observation it was proper for the jury to draw for themselves such inferences as their judgment approved. (Ohamberlayne Ev. §§ 1849, 2048.)

The judgment and order should be affirmed, with costs.

Ingraham, P. J., Olarke, Scott and Dowling, JJ., concurred.

Judgment and order affirmed, with costs.  