
    Samuel McRickard, Resp’t, v. George C. Flint and ano., App'lts.
    
    
      (Court of Appeal, Second Division.
    
    
      Filed April 23, 1889.)
    
    1. Negligence—Open elevator hatchway—When prima facie evidence op negligence—Laws 1874. chap. 547, § 5.
    Tlie plaintiff entered the defendants' building and place of business in the city of New York, and fell into an uncovered hatchway and was injured. At the place where he entered, there was a folding door. It was not the usual place of entry into the building, and the door was generally kept closed except when opened for access to the elevator. In front of the dooi was one step from the walk aud the next was the threshold or saddle oi the door sill, and from the centre of the latter to the elevator shaft was one foot seven inches and from the outer edge of the first step-was less than three feet, so that after the plaintiff stepped onto the door sill his next step took him into the shaft. There was no warning notice. The plaintiff’s evidence was to the effect that he supposed this was the-main entrance, that the hatchway was not in view when he went in, and that he thought, the flooring was continuous from the door sill. There-was no railing, as required by statute, enclosing the hatchway, held, that whether the failure of the defendants to comply with the provisions of the statute (Laws 1874, chap. 547, § 5). was prima facie evidence of negligence, was a question for the jury,
    2. Same — Failure to perform statutory duty evidence of negligence.
    
      Held, that the failure to perform a duty imposed by statute, where as the consequence an injury results to another, is evidence upon the question of negligence of the party chargeable with such failure, but not conclusive evidence.
    3. Same—Duty imposed by statute.
    
      Held, that the defendants owed to any person who should lawfully go into their building the duty which the statute imposed, of so guarding it as not to cause injury to him because of negligence in that respect.
    4. Same—Contributory—Burden of proof—Due care and diligence.
    
      Held, that the burden of proof was with the plaintiff to show that he was free from contributory negligence—otherwise he could not recover. It was his duty to exercise due care and diligence, but it cannot be said that he was required to apprehend that there might be an exposed elevator pit in the place where he entered And the conclusion of the jury that he was free from negligence was justified.
    5 Same—Evidence—Competency of.
    Evidence was properly admitted for the purpose of showing that the-drawings and diagrams of the premises presented by the defendants did. not correctly represent the situation at the time of the accident.
    Appeal from judgment of general term of the court of common pleas of the city of New York, affirming judgment entered on verdict in court below, reported in 13 Daly, 541.
    
      Geo. H. Adams, for app’lts; Christopher Fine, for resp’t.
    
      
       Affirming 13 Daly, 541.
    
   Bradley, J.

On February 4, 1880, the plaintiff entered the defendants’ building and place of business on West Fourteenth street, in the city of New York, and fell into an uncovered elevator hatchway and was injured. He claims that such injury was occasioned wholly by the negligence of the defendants. This building was a manufactory of the defendants, and the elevator was there for the purpose of their business.

The principal ground of the alleged negligence of the defendants is that they had failed to comply with the statute, which provided that “in any store or building in the city of New York in which there shall exist, or be placed, any hoisting elevator or well-hole, the openings thereof through and upon each floor of said building, shall be provided with, and protected by, a substantial railing and such good and sufficient trap-doors with which to close the same, as may be directed and approved by the superintendent of buildings, and such trap-door shall be kept closed at all times except when in actual use by the occupant or occupants of the building having the use and control of the same,” etc. Laws of 1874, chap. 547, § 5.

There was no railing or any obstruction in the way of approach to this elevator shaft from the front door opposite to it, and although the evidence tends to prove that the elevator was not in actual use at the time the plaintiff so entered and fell, there was no trap-door over the hole. The exercise of the duty imposed upon the defendants by this statute was not dependent upon any action of the superintendent of buildings. They could not properly delay for him to direct, but it was for them to call on him for direction and approval in that respect. Willy v. Mulledy, 78 N. Y., 310.

The situation had been the same for several years, and it does not appear that any direction or approval of that official had been obtained from, or given by, him. The failure to perform a duty imposed by statute where, as the consequence, an injury results to another, is evidence upon the question of negligence of the party chargeable with such failure. Jetter v. N. Y. and H. R. R. Co., 2 Abb. Ct. App., 458; McGrath v. N. Y. C. and H. R. R. R. Co., 63 N. Y., 523; Massoth v. D. and H. C. Co., 64 id., 524; Willy v. Mulledy, 78 id., 310; Knupfle v. Knickerbocker Ice Co., 84 id., 488.

It is not conclusive evidence of negligence, and the question presented here is, whether there was error in the charge of the court to the effect that anyone constructing, or using, an elevator upon his premises is considered as doing so with knowledge of the law in that respect, and if such person fails to comply with the requirements of the statute he is prima facie guilty of negligence.

The defendants’ counsel excepted to so much of the charge as states that a failure to comply with the provisions of the law of 1874 is prima facie evidence of negligence.” As an abstract proposition, there was no error in the charge. It had reference to the failure to perform the statutory duty unqualified by any circumstances bearing upon the question, and was not necessarily applied to the present case so as to treat the question of negligence of the defendant as one of law. It was a question for the jury, and upon the request of the defendants’ counsel, they were instructed that the plaintiff could not recover unless the jury found that the defendants were negligent in the use of their premises, and that if the condition of the doors and the elevator and its use by the defendants were reasonable, the plaintiff could not recover. The evidence was such as to justify the conclusion that the defendants were chargeable with negligence. And they owed to any person who should lawfully go into the building the duty which the statute imposed upon them to do him no injury by their negligence in that respect. That duty they owed to the plaintiff, who went to the premises for alegitimate business purpose. The statute is a salutary one, to require, the owners or occupants of business places in the city to guard so far as required by it, against danger of personal injury to those lawfully there and to which they otherwise might be exposed. Its purpose was to provide against personal peril, and it may be assumed that the legislature was advised that such provision was essential to such protection. In view of this statute, the cases cited upon the question of the defendants’ negligence and their duty in that respect, which they owe to others, do not necessarily have application to the present case. But the defendants’ negligence •alone will not support the plaintiff’s recovery. The burden was with him to show that he was free from negligence. And if he failed to make it appear that he was without fault in that respect, the plaintiff was not entitled to recover. It is urged on the part of the defense, that upon the facts as presented by the evidence, the plaintiff must, as a matter of law, be chargeable with contributory negligence. This evidently was the view taken on the first trial, bub on review of that trial the court held otherwise, and reversed the judgment entered upon dismissal of the complaint and granted a new trial. 97 N. Y., 641. And the reasons given in the opinion of the court, then delivered, were “that the facts proved did not justify the conclusion as matter of law that there was contributory negligence on the part of the plaintiff, or that there was such an absence of evidence upon the point, that a finding of the jury that the plaintiff was free from contributory negligence could not be allowed to stand.” The plaintiff’s counsel asserts that the case of his client was at least as favorably presented for him by the evidence on the last as on the former trial. While there were some disputed facts, there was but very little conflict in the evidence as to the situation at the time of the accident, and in relation to the circumstances attending it.

The plaintiff went to the building to see one of the defendants on business and entered at the easterly door, and •being informed that the defendant was not then there, but might be in the shipping department, which was adjacent and on the west of the building, the plaintiff went out of the westerly door on to the sidewalk and thence to the place mentioned. Not finding the defendant there, he proceeded to return to and into the building in which he first sought the defendant, and seeing a door partly open, he entered there and stepped into the open elevator hatchway, the depth of which was about twelve feet. The door was between the easterly and westerly doors before-mentioned of the building, and in going to it the plaintiff passed the westerly one. At the place where he then entered was a folding door. It was not the usual place of entry into the building, and that door.was usually kept closed during the day except when open for the purposes of access to the elevator from the street. In front of this door was one step from the walk, and the next was the threshold or saddle of the door sill, and from the center of the latter to the elevator shaft was one foot and seven inches, and from the outer edge of the first step was less than three feet, so that after the plaintiff had stepped on to the door sill, his next step may have taken him into the shaft. When he approached the door, he was going east. The east half of the folding door was partly open, and he pushed it open some further when he entered. There was no warning notice there. The folding door was of solid wood and of considerable height, and above it was a glass window. This was between twelve and one o’clock in the afternoon, and within the room it was light If the plaintiff had stopped and looked about when he entered the door, he evidently could have seen the situation. Because he failed to do this it is contended that he was necessarily chargeable with contributory negligence. The plaintiff, probably, did not stop after he proceeded to enter. He says he supposed this was the main entrance of the building; that the hatchway was not within his view when he went on to the step; that as he entered he saw the saddle of the door sill and floor, and supposed the latter was continuous; that he then raised his eyes and glanced into the store-room and salesroom through a glass partition, and that although it was light there he saw no elevator shafting, aucl that the door obscured the hole, but exposed sufficient flooring to satisfy him that it was continuous. These are mainly the circumstances of the occurrence as represented by the evidence.

It was the duty of the plaintiff to exercise reasonable care _ and to take observation of that which was apparent to view as he proceeded. But what is due care and diligence depends upon circumstances. The same precautionary means requisite to relieve a party from the charge of negligence when he approaches known places of clanger, or places where danger may be apprehended, may not be required of him when he has no occasion to suppose that danger may be encountered. It cannot be said that the plaintiff upon this occasion was required to apprehend that there might be an exposed elevator pit in the place where he entered. The fact that the door was partly open enabled him to suppose it was a suitable place of entry. So that the question is whether not seeing it was necessarily negligence on his part. That is not so unless he was required to stop and take careful observation of the-place when he entered upon the threslihold and before he proceeded to further enter into the room. He says he looked, saw no hole, and one step took him into it. This question of contributory negligence may be considered in view of the influences which ordinarily control human action. That is, to some extent, governed by appearances, and is not always the consequence of failure to exercise the greatest prudence or to make use of the best judgment. Here the plaintiff in stepping into the room, the first step he took after his entry on to the threshold at a partially open door, received-the injury from a cause which he had no apparent reason to expect, and which he failed to see until too late to avoid the calamity. And the fact that the difference in time between his entrance into the room and his fall was only momentary, is a circumstance bearing upon his opportunity to see the danger, and probably may have had some consideration upon the question of contributory negligence. The conclusion of the jury, that he was free from that imputation, was permitted by the evidence.

"While it was not competent for the plaintiff to give evidence. for the purpose of proving any changes about the premises made subsequently to the accident, the motion to strike out evidence on that subject was not error, because it was not received for such purpose, but was admitted solely to show, as claimed, that the drawings or diagrams of the premises presented by the defendants on the trial did not correctly represent the situation as it was at Lho time in question. There seems to have been no error in the rulings at the trial.

The judgment should be affirmed.

All concur.  