
    William A. Wilcox, Respondent, v. The City of Rochester, Appellant.
    Fourth Department,
    July 12, 1906.
    Negligence — municipal corporation — injury to workman by fall down elevator shaft of police station — when municipality liable for negligence.
    A municipal corporation, in operating an elevator in a police station to carry a workman employed to repair the roof, is not performing a governmental function within the rule which exempts a municipality from liability for the negligence of its employees.
    In an action against a city brought by a tinsmith, who fell down an elevator shaft in a police station, where it appears that he had been conveyed to his work on a previous day by the elevator; that on the morning of the accident, on arriving for work, he approached the elevator shaft on the first floor, walking in advance of the elevatorman, and fell into the shaft, it is proper to charge, where there is a dispute as to whether or not the door was negligently left open, that if the door lacked but two inches of being closed the plaintiff could not recover, and to submit to the jury the question of whether the conduct of the elevatorman amounted to an assurance that the elevator was there and an invitation to enter, and, if they found an invitation, whether such invitation constituted negligence.
    Appeal by tbe defendant, Tbe City of Rochester, from a judgment of tbe Supreme Court in favor of the plaintiff, entered in the office of tbe clerk of tbe county of Monroe on tbe 13tli day of January, 1906, upon tbe verdict of a jury for $2,070.50, and also from an order entered in said clerk’s office on tbe 13th day of January, 1906, denying the defendant’s motion for a new trial made upon tbe minutes.
    Action for personal injuries sustained by plaintiff in stepping into an unguarded elevator well and falling down tbe shaft from tbe first floor to tbe basement. The accident occurred June 28,1904. The elevator was in a building owned by the defendant and used for a police station. Tbe plaintiff, a tinsmith, was employed in repairing the roof of the building. He bad worked one day, and in going to and from bis work he had been conveyed by this elevator. On the morning of the second day be, in company with another workman and tbe man who bad been operating tbe elevator, went toward the elevator shaft, intending to.take the elevator. The door was open, but the car had been left above. The plaintiff, supposing it to be there, stepped into the shaft and fell. It is claimed that the accident occurred through the negligence of .the defendant.
    
      William A. Sutherland, for the appellant.
    
      George B. Draper, for the respondent.
   Kruse, J.:

There was a dispute in the evidence as to whether the elevator door was closed to within two inches, as claimed by the defendant, or whether it was open. The man in charge of the elevator approached the elevator shaft with the plaintiff and his companion, the plaintiff being slightly in advance of the elevatorman. The defendant claimed that the plaintiff must have opened the door.

The trial court held and charged the jury that if the elevator door was closed to within two inches, the plaintiff could not recover, but left it for the jury to determine under the evidence whether the conduct of the elevatorman in connection with the open door and other circumstances was in the nature of an invitation by the elevatorman to the plaintiff to enter the elevator car, with the assurance that the car was there, and whether in so doing the elevatorman was negligent, and also submitted to them the question whether the plaintiff was free from negligence, stating to the -jury that the plaintiff was required to use such care and caution as a reasonably prudent and cautious person would have used under the same circumstances.

We think that both the negligence of the defendant and the contributory negligence of the plaintiff were questions of fact for the jury, and these questions were submitted to them under proper instructions.

It is further contended on behalf of the defendant that in the management of this police station it was engaged solely in discharging governmental functions and, therefore, it is not liable for any act of negligence upon the part of its employee in operating the elevator. We deem it unnecessary to point out the dividing line between such functions as are exercised by a municipal corporation for the State, which have been designated governmental, in respect to which no liability arises against the municipality for the negligence of its servants and employees, and those which relate more particularly to. its own locality and benefit with reference to which the doctrine of respondeat, superior applies. It is not. always free from difficulty to determine to which class a particular act belongs. In this case, however, we are of the opinion that in operating the elevator for conveying the plaintiff to his work on the roof of this building it was not engaged in performing governmental functions within the rule which relieves municipal corporations from liability for negligence of its ’employees. If the plaintiff had been a prisoner being conveyed to a cell under arrest by a policeman a different question might be presented. For careless, ness in operating the elevator under such circumstances and as regards such a person the municipality might be liable, although we do not so decide. (Eddy v. Village of Ellicottville, 35 App. Div. 256 ; McKay v. City of Buffalo, 9 Hun, 401; 74 N. Y. 619.) But as regards the operation of this elevator in conveying the plaim tiff to his work we think the defendant’s servant was not exercising police duty. It might as well be claimed that the city would not he liable for a failure to maintain reasonably safe and passable a public sidewalk across premises used in connection with a police station. We think this case belongs to that class.

The judgment and order should be affirmed, with costs.

All concurred, except Hash, J., who dissented on authority of Snider v. City of St. Paul (51 Minn. 466).

Judgment and order affirmed, with costs.  