
    Rachel Green, as Administratrix, etc., of Charles Green, Deceased, Respondent, v. Urban Contracting and Heating Company and August Oppenheimer, Appellants.
    
      Negligence — injury on an elevator — res ipsa loquitur-—presumption of negligence, rebutted — contributory negligence — leaving the elevator door open is not an invitation to enter.
    
    The owner of a building had a contract with a corporation under which the corporation agreed to take charge of an electric freight elevator in the building and the machinery appurtenant thereto and to supply a competent engineer for such elevator. The electricity operating the elevator was shut- off every night' and was turned on again about six o’clock in the morning by the engineer employed by the corporation.
    The elevator was used by employees of a tenant of the building and on the morning in question several of such employees arrived at the building. One of the elevator doors was open, but the elevator attendant was not in the car, but was in the cellar preparing for his day’s work, the elevator not having yet been used.. Some of the employees took their places in the- elevator, while another one of such employees stood partly inside the elevator and partly outside of it. As the latter stood there talking to his associates, the elevator moved, from some undisclosed cause, and he received injuries resulting in his death.
    ■ The machinery of the elevator was in perfect order and there was no evidence that the moving of the elevator was due to the act of any agent or employee of the owner Of the building or of the corporation having charge of the elevator. The evidence, however, was undisputed that the elevator could, not start without a movement Of the rope by means of which it was operated.
    In an action brought against the owner of the building'and the corporation operating the elevator to recover damages resulting from the death of the employee, it was
    
      Meld, .that- .assuming tfi.at the maxim res ipsa loquitur was -applicable, the presumption of negligence on the part of .the defendants thereby created was' effectually rebutted by the uncontradicted evidence to the effect that the elevator Was.in perfect order and that the accident whs not caused by any act of negligence on -the part of the defendants;
    
      That the deceased employee was, as a matter of law, guilt)-' of contributory negligence in placing himself with one foot upon the elevator and the other upon the floor of the building when there was no one in charge of the elevator and that it was his own negligence that caused his death;
    That the mere fact that the door of the elevator was open did not constitute an' invitation to the intestate to enter the elevator in the absence of the elevator attendant.
    O’Brien, P. J., and Patterson, J., dissented.
    Appeal by the defendants, the Urban Contracting and Heating Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 21st day of December, 1904, upon the verdict of a jury for $11,000, and also by each defendant from an order denying such defendant’s motion for a new trial made upon the minutes, which orders were entered in said clerk’s office respectively on the 20th and 21st days of December, 1904.
    
      Charles Pope Caldwell, for the appellant Urban Contracting and Heating Company.
    
      H. Snowden Marshall, for the appellant Oppenheimer.
    
      Charles Steckler, for the respondent.
   Ingraham, J.:

The defendant Oppenheimer was the owner of a building at the corner of Seventeenth street and Fifth avenue in the city of New York, having purchased the building in January, 1904. In this. building there was a passenger elevator on the Fifth avenue front and a freight elevator on a passageway opening into Seventeenth street in the rear of the building. The firm of Peller Brothers occupied two of the lofts in the building and their employees were in the habit of using the freight elevator for access to the Peller lofts. This elevator was operated by electricity, and when the defendant Oppenheimer purchased the premises he found in existence a contract made by the former owner and the defendant Urban Contracting and Heating Company, by which the contracting company agreed “ to furnish and pay a competent engineer, who will operate the freight elevator during the summer months, take proper care of the electric elevators, pumps, &c., in the building known-s 91 and 93 Fifth Ave., in the said City of New York,” and “to uraish and pay one competent elevator attendant, in uniform, for the passenger elevator, and one elevator attendant for the freight elevator, during the heating season, the hours for elevator service and heat to be in accordance with tenants’ leases; ” and, further, to furnish all the coal and wood and other supplies required for the proper operation and care" of the boilers, elevators and pumps, and to keep them all in thorough order and repair at its own cost and expense, and" to attend.to all minor repairs of the building. In consideration' of such services the owner of the building was to pay to the Urban Company $1,600 per annum. The defendant Oppenheimer, finding this contract in existence, continued it by a verbal agreement by which the Urban Company undertook to manage the machinery and elevators and to employ the elevator # boy and engineer in control thereof. During the night the electricity was shut off so that the elevator could not be moved, but in the morning the engineer employed by the Urban Company was in the habit of coming into the building about six o’clock, looking over the machinery and turning on the current so that the elevators could be moved. It was the duty of the elevator boy who was employed by the Urban Company under its contract with the defendant Oppenheimer' to run the elevator. The elevator was moved by a rope passing through the elevator and down the elevator shaft into the cellar, so that when the electricity was turned on by pulling this rope the elevator could be made to ascend or descend as required.

On the morning of the 16th of April, 1904, several employees of Feller Brothers arrived at the building to go to work. There was evidence that one of the two doors closing the entrance to the elevator on the ground floor was open, but that the elevator boy was not there; that several of the, employees of Feller Brothers went into the elevator and stood there, waiting to be taken up to their work; that the plaintiff’s intestate, who was also-an employee of Feller Brothers, came and stood at the opening into the elevator, one foot upon the floor of the elevator and the other ón the floor of the building, and that the elevator, for some unexplained reason, started up, carrying the plaintiff’s intestate up between the elevator and the wall, causing him an injury which resulted in his death.

The plaintiff has brought this action against both the owner of the building and the Urban Contracting and Heating Company, claiming that they were both guilty of negligence. The evidence is undisputed that the elevator itself was in good order, and it is not claimed that the accident was caused because of defective machinery or of any other defect in the elevator or the building. After the power had been turned on, any one of those upon the elevator, by pulling this rope, could have caused the elevator to move, -but the evidence is undisputed that without a movement of the rope the elevator could not move, as the machinery was so. arranged that if the rope had been in a position to allow the elevator to move when the power was turned on, the sudden current of electricity would have caused a fuse to burn out, which would have prevented the elevator from moving at all. I think that, upon the whole evidence, a finding that the motion of this' elevator was caused in any other way than by a movement of the rope in the elevator, would be against the weight of evidence.

When these employees of Peller Brothers arrived in the morning the elevator boy was not present, and instead of waiting outside of the elevator where they would have been safe, they took their places in the elevator, waiting there for the boy to come, and the plaintiff’s intestate then placed himself partly in the elevator and partly on the floor of the building, in a position of danger in case the elevator should move, and stood there talking to his associates. The elevator did move and the injury resulted because the plaintiff’s intestate had placed himself in this position of danger. There was certainly no invitation to the plaintiff’s intestate either by Oppenheimer, who was the owner of the building, or by the Urban Contracting and Heating Company, which was operating the elevator, to place himself in this position. In the absence of the elevator boy, these men had no business in the elevator. It stood there empty, without any one in control .of it, and was not in a condition for use. Neither of the defendants could have anticipated that persons wishing to use the elevator would stand upon it and wait there for the boy employed" to operate the elevator to come. But whatever may be said about these men who stood in the elevator, certainly one placing himself at the entrance of the elevator, in such a position that the slightest movement of it would be certain to cause an injury, was- not in a position to which he was invited by either of the defendants. If the car had suddenly started as he was walking into the elevator, a different question would be presented. The evidence of the plaintiff’s witnesses is clear that the plaintiff’s intestate stood, in this position talking to the other men for some appreciable time before the elevator started. If he had been outside of the elevator he would have been safe, but placing himself in this position — a position obviously dangerous — was not the act of a prudent person, and an injury that resulted from his thus placing himself in such a 'position is not one for which the defendants are liable.

■ As before stated, the machinery was in perfect order. There is no evidence .that the elevator was caused to move by the act. of any agent or employee of either of the defendants, and there is, therefore, nothing to justify a verdict of negligence against either of the defendants. The elevator boy at the time, had gone down into the 'cellar, and was preparing for his day’s work. The elevator had not been used on this morning. No one had been invited on this morning to use it, and until the boy whose duty it was to operate the elevator had arrived and taken charge of it, it was not in a. condition to be used.

Assuming that the maxim res ipsa loquifavr would apply, and that in the absence of some explanation the sudden starting of the elevator would justify a submission of this case , to the jury as to whether there was any negligence on the part of those responsible for its management, from xmcontradieted evidence it appears that the elevator was in perfect order and that the accident was not caused by any act of negligence of the defendants. Any presumption, therefore, that would have justified a finding of negligence because of the accident is rebutted, and there is no ground upon which a finding of negligence can be sustained.

In Griffen v. Manice (166 N. Y. 188) the duty of the owner of a building to those using án elevator operated and maintained by the owner was. discussed, and the conclusion was that the owner of the building owed those using the elevator the duty of using at least reasonable care in seeing that the premises were'safe, and that if a person thus, using the elevator was injured by an accident,"which could not ordinarily have occurred had the elevator machinery been in proper .condition and properly operated, the court was justified in permitting the jury to infer negligence from an accident. The judgment in that case having been reversed there was a new trial, when the defendant’s evidence was taken, and it again came before this court on appeal (74 App. Div. 371), and the question presented was whether or not the evidence as a whole justified a finding that the defendant was remiss in his duty in exercising the degree of care which the law imposed upon him, namely, ordinary care for the protection of the plaintiff’s intestate, and after discussing the ■evidence we held that a finding of negligence on the part of the defendant was not sustained where it appeared that there was no defect in the machinery or any indication to the defendant or his employees that there was any danger in the operation of the elevator, and that the direction of a verdict for the defendant was proper, and this judgment was affirmed by the Court of Appeals (174 ■ N. Y. 505). This, I think, is a decisive authority against sustaining a verdict for the plaintiff in this case.

Here the undisputed evidence is that the machinery was all in perfect order; that the defendant’s employees were engaged in getting ready to start the elevator in the morning; that before it was ready for use, and before an employee of the defendants was actually in charge' of it, a tenant in the building walked into the elevator, standing in a position which was dangerous if there was a movement of it, without any invitation of the defendants or their employees, express or implied, and that an unexplained movement of the elevator resulted in an accident. For this the defendants were not liable.

The case of Ingrafia v. Samuels (71 App. Div. 14) is not at all in point, for there the accident was caused by the negligence of the elevator man, who deliberately left the car before the others who were passengers upon it, leaving them there unprotected, and it was' this act of the elevator man that was the basis of the'finding of negligence. In sustaining a verdict" in that case the court said: “His negligence, therefore, in thus leaving the car and its occupants before they had opportunity to safely alight, in view of his knowledge or means of knowing that such an accident could occur and was to be guarded against, was a failure to observe that reasonable care which, as stated in the recent case of Griffen v. Manice (166 N. Y. 188), is required in the maintenance and operation of an elevator.”

In this case there is no evidence that the operation of the car had commenced, that the plaintiff’s intestate or his associates had been invited to enter the car, or that the agents of the defendants could have anticipated that the defendants’ employees would get upon the elevator and wait, there, rather than to remain in a place of safety outside of the car. The mere fact that the door of the elevator was open was riot an-invitation for any one to get into the elevator when lio one was in charge of it.

If this view of the case is correct, the plaintiff’s intestate was guilty of contributory negligence as a matter of law in placing himself in this position, with one foot upon the elevator and the other on- the floor of the building, 'when there was no one in charge of the' elevator, and it was his negligence that caused the injury; and there is no evidence, to show, that the defendants or either of them were negligent.

The judgment and order must, therefore, be reversed and a new trial ordered, with costs to the appellants to abide the event.

McLaughlin and Laughlin, JJ., concurred; Pattebson and, O’Bbien, JJ., dissented.

Judgment and order reversed, new trial 'ordered, costs to ■ appellants-to abide event.  