
    GUICHARD v. NEW.
    (Supreme Court, General Term, First Department.
    January 18, 1895.)
    1. Negligence—Dangerous Premises—Elevator Shaft.
    Whether an automatic gate 3 feet high is sufficient, under Laws 1892, c. 275, § 28, which' requires elevator shafts to be protected by a substantial guard or gate, is a question for the jury, where it appears that the space between the gate and the elevator was only 2% inches, and that very little projection of a person’s head into the elevator shaft would be dangerous.
    8. Same—Contributory Negligence—Children.
    It is a question for the jury whether a boy 8% years old was guilty of contributory negligence in thrusting his head into an elevator shaft, in consequence of which he was struck by the elevator.
    8. Same—Contributing Act.
    An act on the part of a person injured, though it contributes to the injury, will not defeat a recovery, unless it was negligent, as; it is not the contributing act, but contributory negligence, that defeats recovery.
    Appeal from circuit court, New York county.
    Action by William G-uichard, an infant, by Augustine L. Guichard, Ms guardian ad litem, against Jacob New, for personal injuries. The complaint was dismissed, and plaintiff appeals.
    Reversed.
    Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.
    G. E. Waldo, for appellant.
    O. O. Nadal, for respondent.
   O’BRIEN, J.

This action is brought to recover damages for injuries sustained by the plaintiff. On September 13, 1892, the defendant was the owner of premises on South Fifth avenue, in tMs city, which were a five-story building, rented in floors to manufacturers, some of whom employed a large number of hands; among them, young girls. At the rear of the hallway in the building is an elevator used for both freight and passengers; very little of the former being carried thereon, it having been mostly used for passengers. The elevator, by facing, is plainly visible from the street. On each floor, at the opening into the elevator shaft, there was an automatic wooden gate, three feet high, which slid up and down like a window, and a gate of the same construction guarded the shaft at the street floor. Attached to and on the elevator car was a flexible iron gate, which was open at the time of the accident, and was so rusted that it could not be closed. Between the wooden gate on the landing and the iron gate on the car, there was a space of 2¿ inches; and between the top of the iron gate on the car and the iron bar at the top of the car, there was a space of about 10 inches. On the date mentioned, the appellant, then an infant eight years and seven months of age, and about four feet two inches in height, was playing on the sidewalk in front of the adjoining building. The man employed to run the elevator for respondent called the boy inside the door of the hallway, and told him to get a pitcher and get a pint of beer, to pay for which he gave the boy 10 cents. The boy went home for a pitcher, and thence across the street to a saloon, where he got the beer, and returned to the premises, and gave it to the elevator man, in the front part of the hall. The latter requested him to go up on the third floor with him on the elevator, which he did. There they got off, stayed just long enough for the elevator man to drink the beer, and then both got on again, and went down to the first or street floor, where the boy got off, and started towards the street. The elevator man shut the wooden gate, and started the ear down towards the basement. The boy, after having gone a little way towards the street door, returned to the elevator shaft, and, seeing the elevator moving down, and the shaft gate closed, looked ■over, and at the same time asked the elevator man where he was going; but before he got an answer the top iron cross-bar or frame •of the. elevator caught on the top of the boy’s head, tore his scalp completely off, and otherwise injured seriously his face, teeth, and head. It appeared that the boy had played frequently in front of the entrance to the premises; knew of tire existence and position ■of the elevator, but had never been in it or in the hallway before; and had never spoken to the elevator man nor the latter to him, prior to the day of the accident. In addition to plaintiff’s witnesses, tenants in the building were examined, who testified to the condition of the elevator, and the rusty condition of the gate on the car, which prevented its closing, and also that they had notified the defendant of the danger which they apprehended from such conditions, and from the low gates on the landings, that guarded the elevator shaft. Upon such testimony, supplemented by chapter 275 of the Laws of 1892 (section 28),which requires that elevator shafts similar to the one in question “shall be provided with and protected by a substantia] guard or gate,” the plaintiff relied for a recovery.

At the close of plaintiff’s case, a motion to dismiss the complaint was made, placed upon three grounds: (1) That no negligence on defendant’s part was shown; (2) that no evidence that plaintiff was free from contributory negligence was given, but, on the contrary, the evidence was that plaintiff himself contributed to the injury; and (3) that plaintiff was a trespasser on the premises, or, at most, was there by mere sufferance, and thus assumed the conditions as they existed there, the defendant owing him no special duty. The learned trial judge granted the motion upon the two latter grounds assigned, viz. the absence of evidence showing plaintiff’s freedom from contributory negligence, and that for the reason that the accident happened after the boy had quit the elevator to go to the street, and upon his return, the defendant could not be held responsible. We might confine our attention, therefore, to these grounds; but as the other question, of the absence of any negligence on the part of the defendant, is also urged to support the judgment, it will be necessary to refer briefly to the three grounds upon which the motion was made.

First, was there sufficient evidence to submit to the jury the question of whether or not the defendant was negligent? As stated, the construction and use of the elevator and shaft were not that of a hoist-way, but of a passenger elevator, with a close-fitting car, so that the slightest projection of a person’s head or limbs into the shaft would be dangerous, the distance between the iron bar at the top of the car and the wooden gate at the landing being but'2^ inches. To prevent injury to those in the car from the projection of their persons, as well as to prevent their getting on or off while the car was in motion, a flexible, iron gate was provided. On account of the rust, this was not in a condition, at the time of the accident, to be closed, and, so far as appears, had not been used for some time prior thereto. It is true that the boy was not injured while on the car, but while on the landing; but there is something in the suggestion made by one of the witnesses, who testified:

“There are prongs go up from this iron gate, and those prongs slip through the iron bar on the top of the car. If this gate had been shut, that iron frame couldn’t have caught the boy’s head, unless he put it in between the top of the gate and 'this bar. In that case his face would have struck that, if he had put his head over the gate.”

According to this witness, if the flexible gate of the car had been closed, the projection of the boy’s head over the low, wooden gate on the landing would have brought his face against the gate of the car, unless he happened to run his head in the space (assuming the gates to be closed) that would be left between the top of the gate and the iron bar at the top of the car, which, as testified to by one of the witnesses, was about eight inches. Apart, however, from this, considering the character of the construction of the sliding gate on the landing, which was only three feet high, and which cannot be held, as a matter of law, to have been fully adequate for the protection of the passengers, coupled with the fact that the danger to be apprehended from this low gate was brought home to the defendant, we think a question was presented as to whether such a construction was proper and safe, and a compliance with the statute, and upon this branch, as to defendant’s negligence, sufficient to go to the jury.

Upon the second ground, that there is no evidence that the plaintiff was free from contributory negligence, there was sufficient in the case upon which the learned judge should have submitted this, also. to the jury. It has been frequently held that an infant, although sui juris and thus chargeable with his own negligence which contributed to his injury, is not to be held to the same standard of prudence and judgment as a man of mature years and experience. In O’Mara v. Railroad Co., 38 N. Y. 449, the court say:

“It is to be considered, also, that the deceased was a lad eleven and a half years old, to whom greater indulgence should be extended than to an adult. He was of that age that he was quite fit to be trusted with the care of his own person in the streets of a country village, and yet it is not probable that he would exercise as much prudence and caution as an adult. * * * The young are entitled to the same rights, and cannot be required to exercise as great foresight and vigilance, as those of maturer years. More care towards them is required than towards others. In the case of a child of but two or three years of age, no knowledge or foresight could be expected. This an engineer is bound to know, and, if the child is within his view, to act accordingly. In a case like the present,—that of a boy eleven and a half years of age,—the jury were not bound to require the same demureness and caution as in the case of an older person.”

See, also, McGovern v. Railroad Co., 67 N. Y. 421; Byrne v. Railroad Co., 83 N. Y. 621; Wendell v. Railroad Co., 91 N. Y. 420; Brown v. City of Syracuse, 77 Hun, 411, 28 N. Y. Supp. 792.

Yo doubt, as urged by the respondent, the act of the boy, in putting his head over the gate to call to the elevator man, contributed to the injury. But an act, though contributory to the injury, if not, under all the circumstances appearing, negligent, would not prevent a recovery. In other words, it is not the contributing act, but contributory negligence, that defeats recovery; and this distinction has been pointed out in the case of Schmidt v. Cook, 30 Abb. N. C. 285-290, 23 N. Y. Supp. 799. We do not think, therefore, as a matter of law, it could be held that a child of the age of the appellant, who was injured in the manner described, was guilty of contributory negligence which would bar a recovery; but, upon the facts here appearing, that question should have been submitted to the jury.

The final ground, that after the boy had left the elevator, for the purpose of returning to the street, the defendant owed him no obligation, does not seem to us to be tenable. That the boy was not a trespasser appears from the fact that he was invited upon the premises by the elevator man, who used him in doing an errand; and, in the absence of express rules to the contrary, there was nothing wrongful in sending the boy upon a message. If, instead of sending him for beer, the elevator man had sent him for food, or for water to quench his thirst, we do not think, unless there was a rule of the defendant forbidding his employés sending a boy on such an errand, that it would be wrongful in him to do so. There is no prohibition against a workman having a pint of beer, with which to quench his thirst, any more than there is against his having food or water. Yor is there sufficient in the fact that it was beer, instead of either food or water, to justify the conclusion that the boy, while on the premises, where he had been brought by the invitation of one having the apparent right to do so, was a trespasser. By this we do not mean to hold that the one who sends the boy, or the one who sells the beer to him, may not do wrong, but only that the boy’s status, by the mere fact of going, is not changed from a rightful into a wrongful one. It is unnecessary, however, for us to determine just what the boy’s status was, because, er'en if technically a trespasser, it would not, as a matter of law, preclude a recovery. But we do not think he could be regarded, even technically, as a trespasser.

Upon all the testimony, as inferences favorable to the plaintiff, upon all the grounds, could have been drawn, and as it cannot be said, as a matter of law, that any or all should have been resolved in defendant’s favor, we think it was error to dismiss the complaint; and for such error the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.  