
    Esther Gurland, an Infant, by Rebecca Gurland, Her Guardian ad Litem, Respondent, v. C. W. L. Realty Company, Appellant.
    First Department,
    July 9, 1915.
    Negligence — injury to child by sudden starting of passenger elevator —degree of care required in maintaining and operating elevator.
    In an action for personal injuries it appeared that the plaintiff, a child about ten years of age, together with a sister about eleven years of age and two younger sisters, lived on the fifth floor of an apartment house; that the oldest sister entered the elevator, which was at the ground floor with no one in it, and as the plaintiff was about to step in the elevator suddenly-started upward and she was injured; that the operator was at the time in charge of the telephone switchboard some ten to twenty-five feet away; that, the elevator could have been started from the basement or by turning the lever in the car, and that there was no evidence of any defect in the elevator other than the fact that it started.
    
      Held, that it was reversible error for the court to charge that the defendant was bound to use more than ordinary care in maintaining and operating the elevator, so that the verdict may have been rendered on the theory that it was the duty of the defendant so to construct and maintain the elevator that it could not have been started by the plaintiff’s older sister.
    Appeal by the defendant, C. W. L. Realty Company, 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 16th day of March, 1914, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      Stephen P. Anderton [James F. Mahan with him on the brief], for the appellant.
    
      Henry L. Scheuerman [Paul M. Herzog with him on the brief], for the respondent.
   Laughlin, J.:

This action was brought to recover damages for personal injuries sustained by the plaintiff on the 4th day of June, 1912. She was then nearly ten years of age and resided with her parents in an apartment on the fifth floor of a six-story elevator apartment house known as 235-24Í East Fifty-seventh street, borough of Manhattan, New York, owned by the defendant and in which it operated an electric power passenger elevator for the use of the tenants. The operation of the elevator was controlled by a lever and it was in charge of an operator' who also had charge of the telephone switchboard on the first floor, some fifteen to twenty-five feet from the entrance to the elevator. The accident occurred at about nine o’clock in the evening. The plaintiff had an older sister Clara, who was eleven and a half years of age, and two younger sisters. It was a warm night and about eight , o’clock in the evening their mother took the children down to the ground floor and left them in a playground in front of the building.- Shortly before the accident the children started to return to the apartment. The elevator was at the ground floor with no one in it, but with’ the door open, and the operator was attending to his telephonic duties. Clara entered the elevator and as the plaintiff was about to step into it the elevator suddenly started upward and she was badly injured. The elevator could have been started from the basement or by turning the lever in the car. Clara testified that she did not turn the lever with her hand, but she could not say whether or not her dress or body brushed against it.

The case was submitted to the jury on the theory that the defendant was liable if it was negligent in the manner in which it maintained and operated the elevator. There was no evidence of any defect in the elevator other than the fact that it started, and the court so instructed the jury. The court in charging the jury with respect to what constituted negligence instructed them, in effect, that generally the law only requires the exercise of ordinary care, which is the care a man of ordinary prudence would exercise under the same'circumstances, but then added the following: “This case is a little different and I charge you that in this case the defendant was bound to exercise great care, because he was running an elevator which was in effect although not in all circumstances the same as, practically, a public conveyance.” The court further charged that if the jury found that the defendant “ did not use a great degree of care in the maintenance and operation of this elevator and that the child was free from negligence and did not in any degree contribute to the accident or her injury, then of course your verdict must be for the plaintiff.”

At the close of the charge counsel for defendant duly excepted to the instructions to the effect that the defendant was required to use “the greatest care,” and thereupon the court said: “I say a great degree of care, not the greatest.” Counsel for defendant then duly excepted to that instruction, and requested the court to charge that the owner of the building in which there is a passenger elevator owes to the people using the elevator “ the duty of using reasonable care'in seeing that the premises are safe. ” In answer to this request the court said, “I will charge that,” and thereupon counsel for the defendant added, “Including the elevator,” to which the court replied: “I will except as to the elevator and I will say in the maintenance and operation of the elevator he is chargeable with great care.” An exception was duly taken to this charge and to the refusal to charge as requested. Counsel for the defendant also requested the court to instruct the jury that if the accident was one which a person of ordinary .prudence could, not have foreseen, then the verdict must be for the defendant. The court declined so to charge and the defendant duly excepted. The court thereupon, at the request of counsel for defendant, instructed the jury that “the uncontradicted evidence in this case is that the elevator and machinery were in perfect order,” and that there was no evidence that the elevator “ was caused to move by the direct act of any agent or employee of this defendant.” The court also refused to charge a request duly made that if the accident “happened entirely by reason of the negligence of ” plaintiff’s older sister, then the verdict must be for the defendant.

It is manifest that the recovery cannot stand. The verdict under the charge may have been rendered on the theory that it was the duty of the defendant so to construct and maintain the elevator that it could not have been started by the plaintiff’s older sister. The court erroneously instructed the jury with respect to the duty of the defendant in maintaining and operating the elevator. That duty was ordinary care; but the court plainly gave the jury to understand that while that was the duty of the defendant with respect to maintaining its premises generally, a greater duty devolved upon it in maintaining and operating the elevator. The degree of care greater than ordinary care, which the court instructed the jury devolved on the defendant in maintaining and operating the elevator, was in no manner defined or limited, and, therefore, it cannot be said that the defendant was not prejudiced by the instructions given and refused on that subject. Of course, if in the exercise of ordinary care the defendant could not have foreseen the cause of the accident, it cannot be held liable therefor.

It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the .event.

Ingraham, P. J., McLaughlin, Dowling and HotcHkiss, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  