
    Edgar Weinberger, Plaintiff, v. Herman Kratzenstein et al., Defendants.
    (Supreme Court, New York Trial Term,
    May, 1901.)
    '•Negligence — Failure to provide a freight elevator in New York city with trap-doors and a substantial guard or gate — L. 1892, ch. 275, § 28.
    The act creating a department of buildings in the city of New York (L. 1892, ch. 275, § 28), and requiring any hoistway or freight elevator or well-hole, not of fire proof construction, to be protected by “ a substantial guard or gate and with such good and sufficient trapdoors with which to close the same,” as may be directed and approved by the city superintendent of buildings, also declares that trapdoors need not be closed until the close of business, and hence, where a person is injured during business hours by falling down the elevator shaft of premises because the guard chain of the shaft broke when he leaned against it, he cannot recover damages of the owners of the premises upon the ground that they had failed to provide the elevator shaft with the statutory trap-doors as the presence of open trap-doors would not have prevented the accident.
    An iron chain firmly fixed in the wall of an elevator shaft at one of its ends and hooked at the other end into an eye-bolt or staple set into the opposite wall, and apparently in proper condition, is a sufficient compliance upon the part of the owners of the building with the said statute requiring “ a substantial guard or gate ” for the shaft.
    Action for negligence.
    
      Kurzman & Frankenheimer, for plaintiff.
    Nadal, Smyth & Carrere, for defendants.
   Scott, J.

The action is for damages for an injury suffered hy the plaintiff by falling into an elevator shaft or well. On the trial, the complaint was dismissed as against the defendants Kratzenstein and others, tenants of a portion of the building in which the accident occurred, and the jury found a verdict against the defendants Hasell and others, the owners of the building. The shaft or well was inclosed on three sides, and was protected as to its open side hy an iron chain fixed firmly in the Avail at one end, and provided Avith a hook at the other end, which hooked into an eye-bolt or staple in the wall. There was no evidence that either the chain or the eye-holt Avas out of repair, or, at least, if they were, that their deficiencies were apparent or known to the OAvner or anyone else. The plaintiff, desiring to look up the shaft to ascertain the position of the elevator, leaned upon the chain, which gave Avay and permitted him to fall to the bottom of the shaft. The defendants* negligence is predicated upon the contention that they failed to comply with section 28 of chapter 275, LaAvs of 1892, Avhich was in force when the accident occurred. That section reads as follows: “ In any building in which there shall be any hoist way or freight elevator or well-hole not inclosed in Avails constructed of brick or other fire-proof material and provided with fire-proof doors, the openings thereof through and upon each floor of said building, shall he provided with and protected by a substantial guard or gate and with such good and sufficient trap-doors Avith which to close the same, as may be directed and approved by the superintendent of buildings; and the said superintendent shall have exclusive poAver and authority within said city to require the openings of hoist-ways or hoist-way shafts, elevators and well-holes in buildings to be inclosed or secured by trap-doors, guards or gates and railings. Such guards or gates shall he kept closed at all times, except when in actual use and the trap-doors shall be closed at the close of business of each day by the occupant or occupants of the building having the use or control of the same.”

It did not appear that the defendants had ever provided any trap door or other door to the elevator shaft at the point where the accident happened, or that the superintendent of buildings had ever directed any such door to be provided. The plaintiff contends that this omission of itself constituted negligence, and cites McRickard v. Flint, 114 N. Y. 222, to support his contention. That case, however, differs in essential particulars from the case at bar. The statute applicable to that ease (Laws of 1874, chap. 547, § 5) provided that “ elevator or well-hole * * * , 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,” being to this extent similar to the act applicable to the present case, except that in the act of 1874 a substantial railing ” was required, while under the act of 1892 a wider discretion is given to the owner by permitting the use of a substantial guard or gate.” There is, however, a very important difference between the two statutes as to the use of the “ trap door.” By the act of 1874 it was provided that the 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.” Under this statute it was the duty of the occupant not only to provide a trap door, but to keep it closed at all times, whether during business hours or not, when the hoistway was not actually in use. The act of 1892, however, contains no such provision. The “ guards or gates ” are to be kept closed at all times except when in actual use, but the trap doors are only to be “ closed at the close of the business of each day,” and hence could lawfully be kept open continuously during business hours, whether the elevator was actually in use or not. The accident in question occurred during business hours, when the trap doors, even if provided, need not have been kept closed, but might lawfully have been open. The presence of an unclosed trap door would not have prevented the accident which occurred, and hence the fact that there was no such door in existence cannot be said to have contributed to the accident. The mere fact that a person has violated a law is not sufficient to charge him with liability for an accident, unless the violation of the statute has something to do with the occurrence of the accident. Stewart v. Ferguson, 34 App. Div. 515-521. It is impossible to say that the failure to provide a trap door, which, if provided, might lawfully have been kept open, contributed to the happening of the accident. The other question is whether a chain such as was provided was a “ substantial gate or guard.” - This precise question was before the Court of Appeals in Malloy v. N. Y. Real Estate Assn., 156 N. Y. 205. The statute under consideration in that 'case required elevator shafts to be protected by a “ substantial railing.” The owner provided a chain. The evidence showed, as was shown in the case at bar, that such a guard was very commonly used in the city of New York to protect elevator shafts, and the court held that the use of such a chain was a sufficient compliance with the statute. In the face of the evidence of the common use of a chain for such purpose, and in the absence of any evidence to show that the chain used was actually defective, or that its defects, if any, were so apparent that a careful "inspection by the owner would have disclosed them to him, there was no question to submit to the ‘jury, and the complaint should have been dismissed as to him.

The motion to set aside the verdict and for a new trial must be granted. The plaintiff may have thirty days’ stay of execution, after entry of judgment, within which to perfect an appeal, and sixty days to make and serve a case on appeal.

Ordered accordingly.  