
    Ann Donnelly, as Administratrix, &c., of John Donnelly, Respondent, against Edward O. Jenkins, et al., Appellants.
    (Decided February 2d, 1880.)
    An elevator with a hatchway was used in a passage at the foot of stairs leading to the upper floors of a building, different floors of which were occupied by two different tenants. The elevator was properly enclosed, and was provided with doors to be shut when it was not in use; but it was so situated that the doors, when open, partially concealed the stairs, and the entrance to the elevator might then be mistaken for the stairway. Held, that although, under the circumstances, leaving the doors open might be negligence causing the death of a person who fell through the hatchway, yet as the elevator was properly constructed and protected, neither of the two tenants of the upper floors would be liable for injuries arising from the negligent use of it by the other; and in the absence of evidence to show that the doors were left open by either tenant, or that either used the elevator exclusively, a verdict against both, in an action for negligently causing the death of such person, could not be sustained.
    Appeal from a judgment of this court entered upon a verdict, and from an order denying a motion for a new trial upon the minutes.
    In February, 1873, the defendants were tenants of the building 233 William street, New York city.
    The defendants, Dunham & Russell, were bookbinders, and tenants on the floor above the street.
    The defendant, Jenkins, was a printer, and tenant of the upper floors.
    
      There was an elevator in the hallway of these premises, which was used by the tenants in common, and which was inclosed and had doors opening into the hallway on the first floor, upon which doors there -were bolts for the purpose of fastening them.
    On February 23, 1873, John Donnelly, who was in the employ of the N. Y. Printing Co., as their servant, came to deliver goods to Dunham & Russell, and in some way fell through the elevator hatchway into the .lower floor, and was so injured that he subsequently died.
    No one saw deceased enter the building or fall through the hatchway.
    Just at one side of the elevator is a stairway which is partially concealed when the doors leading to the elevator are open, and it seems to be probable that the elevator doors had been left open, and the deceased, mistaking the elevator for the stairs, walked into and fell through.
    This action is brought by the administrators of the deceased against Dunham & Russell and Edward O. Jenkins, to recover damages, &c.
    
    Upon the trial, the jury rendered a verdict for the plaintiff. A motion by the defendants, separately, upon the' judge’s minutes, for a new trial, was denied. From the judgment entered on the verdict, and the order denying a new trial, the defendants appealed.
    
      Theodore F. Miller, for appellants Dunham & Russell.
    
      Wm. H. Arnoux, for appellant Jenkins.
    
      Geo. H. Hart, for respondent.
   Van Brunt, J.

[After stating the facts as above.]—We cannot hold, under the evidence in this case, that the maintenance of an elevator in the building Vas in itself a nuisance. The evidence shows that the elevator was properly inclosed, and that it was provided with doors which were to be kept shut when the elevator was not in use, and which were a reasonably eflieetual protection against accidents, and if under the circumstances of this case, the deceased opened the door of this elevator before he fell through it, he undoubtedly was guilty of contributive negligence. If the doors were shut, the stairs were in full sight, and he knew of the fact of an elevator being there, as he had been upon the premises for the delivery of goods some three times before.

If, however, the elevator door was left open, it partially concealed the stairs, and the deceased may have naturally made the mistake in supposing that the door to the elevator was the door to the stairway. In such a case, the negligence by which the deceased lost his life.would be the leaving the door of the elevator open.

It seems to be reasonably clear that, as the elevator was properly constructed and properly protected for accidents arising from negligence, the defendants, Dunham & Russell, would not be liable for the negligent use of the hatchway by Jenkins, and vice versa. In the case of Totten v. Phipps (52 N. Y. 354), the defendants had entire and exclusive charge of the trap-door and had been accustomed to shut it down in the evening. The deceased was a tenant of the upper floors, and had an easement over the hallway in which this trap-door was situated. In the night, going to his premises, the trap-door being left open, the deceased fell through and was killed. The court held that the deceased had a right to assume that the trap-door was, as usual, closed, and that, going upon the premises, as he had a right to do, in the night, he was not guilty of negligence in acting upon that assumption, and that the defendants were guilty of negligence in leaving the trap-door open.

That case is distinguishable from the one at bar in the fact that in the case cited the defendants, who were members of one firm, had exclusive control of the trap-door, as it was used only by them, and if it was left open it must have been so left by them; whereas, in the" case at bar, Dunham & Russell and Jenkins are different parties, the one in no way liable for the negligence of the other. If Dunham & Russell left that elevator open, then they alone are liable, and if Jenkins left that door open, then he alone is liable.

There being no evidence in this case by whom the door was left open, I am nnable to see how the jury could be allowed to speculate and fix a liability upon either or all of the defendants, as their fancy might dictate.”

If either of these defendants used that elevator exclusively, then if this door "was left open, we might legitimately infer that it had been left open by such defendant, but in the absence of all proof upon this subject, I am unable to see how we can say that this or that defendant was guilty of the negligence.

I am of the opinion therefore that there was no evidence showing the defendants guilty of negligence, and the judgment must be reversed and a new trial ordered, with costs to abide event.

Charles P. Daly, Ch: J., concurred.

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