
    Hermon Harris, Appellant, v. Isaac Guggenheim and Others, Respondents.
    Second Department,
    December 30, 1912.
    Negligence — injury by drop of elevator — evidence — erroneous dismissal of complaint — ordinary use of freight elevator — question for jury — burden to disprove negligence.
    Plaintiff in an action for personal injuries claimed that, while he was pushing a truck, loaded with merchandise, on the car of a freight elevator maintained and operated by the defendant, the car, without action on the part of the operator, suddenly dropped from twelve to fifteen inches, and by reason thereof he was thrown down and injured, Evidence examined, and held, that the complaint should not have been dismissed;
    That there was sufficient evidence to go to the jury upon the question whether or not this was an ordinary Use of the freight elevator, to which defendants had consented;
    
      That, if this was a proper use for the elevator, the unexplained drop in . the car was such an unusual occurrence that the defendants should ■ have been called upon to show that they were not at fault.
    Appeal by the plaintiff, Herman Harris, from a judgment of the Supreme Court in favor of the defendants, entered'in the office of the cleric of the county of Kings on the 11th day of April, 1912, upon the dismissal of the complaint, by direction of the court at the close of plaintiff’s case, upon a trial at the Kings County Trial Term.
    
      Martin T. Manton [Burt L. Rich with him on the brief], for the appellant.
    
      James J. Mahoney [M. J. Wright with him on the brief], for the respondents.
   Burr, J.:

Whether or no when a person enters the car of an elevator, a sudden drop of from twelve to fifteen inches, without action on the part of the operator, is sufficient circumstantial evidence of a defect in the mechanism, arising from improper construction or want of repair, to require the submission of the question of defendant’s negligence to a jury (Stackpole v. Wray, 99 App. Div. 262; Starer v. Stern, 100 id. 393), this fact in connection with the surrounding circumstances may be. (Griffen v. Manice, 166 N. Y. 188.) In this case, where the complaint was dismissed at the close of plaintiff’s case, and where all of the evidence is to be construed most favorably to plaintiff, these additional facts appear.

The complaint alleges and the answer admits that defendants were in possession and control of the premises situated at No. 200 Green street, ih the borough of Manhattan, and maintained and operated a freight elevator for the use of the tenants occupying the building, one of which tenants, the Federal Printing Company, was plaintiff’s employer. On the day in question'plaintiff was pushing a truck, loaded with merchandise, into the car of the elevator, when, as he claims, it suddenly dropped a distance of from twelve to fifteen inches, and by reason thereof he was thrown down and injured. There is evidence from which the jury might find that on the day when the accident happened the elevator ■ which dropped was the only elevator furnished by defendants for the use of their tenants in moving merchandise. . It appears that the Federal Printing Company was removing from the building, and that the elevator ordinarily used for moving merchandise was then in use for the purpose of removing machinery. There is evidence that the elevator in question had been previously used for moving merchandise, and it does not appear that the use was extraordinary in its character, or without defendants’ consent. The load of merchandise which plaintiff was placing upon the elevator was not unusual in size. On the contrary, it appears that the truck upon which it was being used was one of the smallest used for that purpose. It is true that plaintiff said he had never placed upon the elevator in question as heavy a load as he did upon this occasion, but there is evidence that nearly if not quite as heavy a load had been previously placed thereon by others. It also appeared that there were other passengers on the car of the elevator when plaintiff attempted to enter it, and that on this occasion he entered it not only with the consent but at the invitation of the operator in charge. There is some evidence that, owing to the construction of the car and the fact that there was a small space between the platform of the car and the edge of the floor, more than ordinary force was required to push the truck on the car. While the effect of this may have been to cause the truck to strike against the opposite side of the car, by reason of which plaintiff fell — and there is suggestion of this in- some of the questions upon his cross-examination— this does not clearly appear. We think that there was enough to go to the jury upon the question whether this was. not the ordinary use of a freight elevator, to which defendants consented. If so, an unexplained drop in the car of the elevator of from twelve to fifteen inches is such an unusual occurrence, if an elevator is in order and its mechanism sufficient, that it calls upon the defendants to explain how it happened, if it did happen, and that it was without their fault.

It may be argued that it is a mechanical improbability that the car of the elevator should drop a distance of from twelve to fifteen inches and then come to a stationary position. This, however, is rather matter of defense than otherwise. The case is a close one, but we think that the question of defendants’ negligence should have been submitted to the jury.

The judgment should be reversed and á new trial granted, costs to abide the event.

Jenks, P. J., Hirschberg, Thomas and Woodward, JJ., concurred. .

Judgment reversed and new trial granted, costs to abide the event.  