
    MORRIS J. RITTERMAN, Respondent v. ELIHU H. ROPES, Appellant.
    
      Decided December 1, 1884.
    
      Negligence.—Elevator—Obligation of one furnishing for use.— Contributory negligence—Finding of jury against not disturbed.
    
    Defendant being the owner of a building, constructed in it an elevator, for the purpose of carry goods to its several occupants, the customary mode of raising goods being for the party delivering them to place them in the elevator and then himself (not going up with the elevator but remaining standing on the ground floor) raising the elevator to the floor occupied by the party for whom the goods were destined, and place the elevator in charge of the janitor of the building. Held, that defendant was under an obligation to persons delivering goods to occupants (the janitor being in actual control) to use an ordinary degree of care in having or keeping the elevator safe for customary use.
    Plaintiff, having some bottles to deliver to an occupant of the building above referred to, placed them under the direction of the janitor upon the elevator, and began raising the elevator, the janitor standing by and observing the manner in which he pulled the rope. After he had raised a considerable distance, and while he, under the janitor’s direction (as testified to by him but denied by the janitor) was looking up the shaft for the purpose of seeing whether a light shone into the elevator, one of the bottles fell on his head and injured him. The bottles were stood on the floor of the elevator without being placed in a basket or any equivalent thing, to prevent them from toppling oyer; and plaintiff did not pull the ropes in a steady, regular but in a jerking intermittent manner. Held, that the verdict of the jury finding there was no contributory negligence should not be disturbed.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
    Appeal by defendant from a judgment against Mm, entered on the verdict .of a jury, and also from an order denying a motion for new trial made upon the judge’s minutes.
    The facts sufficiently appear M the opiffion.
    
      
      C. S. See, attorney, and Theron G. Strong,
    
    of counsel for appellant, on the questions written on by the court, urged : I. Neither the alleged careless and faulty construction of the elevator, nor the circumstance that it was out of repair, imposed any liability on the defendant as landlord, and the motion for a new trial should therefore have been granted.
    If the construction was careless and faulty, no liability arose, because it is well settled that from the mere fact of letting, no contract is implied that the demised premises are or shall be fit for a tenant’s business, nor that they are tenantable for the purposes intended (Jaffe v. Harteau, 56 N. Y. 398 ; Outerbridge v. Phelps, 45 Super. Ct. 555). The rule caveat emptor, applies in all cases of letting (O’Brien v. Capwell, 59 Barb. 497 ; McGlashen v. Talmadge, 37 Id. 314; Cleeves v. Willoughby, 7 Hill, 83 ; Howard v. Doolittle, 3 Duer, 464). But there is no proof of faulty construction. Ochiltree’s testimony, that the platform was not sufficiently wide, is disposed of by Lawrence’s, that the space was necessary for the rope, and that the principal cause of its working hard was the wearing away of the wheel, and both of these witnesses are plaintiff’s. All that the evidence can be claimed to prove, is that the elevator was not in repair.
    The fact that the elevator was out of repair imposed no liability, because it is well settled that in the absence of an agreement to repair, the owner of premises is not hable to tenants or those visiting them for damages sustained by reason of the condition of the property (Jaffe v. Harteau, 59 N. Y. 398 ; Ryan v. Wilson, 87 Ib. 471 ; Keyser v. Herth, 36 Super. Ct. 348; Converse v. Walker, 30 Hun, 596 ; Doupe v. Genin, 45 N. Y. 119 ; Edwards v. N. Y. & Harlem R. R. Co., 35 Hun, 634 ; Clancy v. Bryne, 56 N. Y. 29 ; O’Brien v. Capwell, 59 Barb. 497). There is no evidence of any agreement by the defendant to keep the premises in repair, and the presumption, in the absence of evidence is, that it is the tenant’s duty to repair (Mayer v. Moller, 1 Hilt. 491; Ulrich v. McCabe, Ib. 251; Waggoner 
      v. Germaine, 3 Den. 306; Blunt v. Aekin, 15 Wend. 522 ; 4 T. R. 18).
    II. The court erred in denying a motion for a new trial, for the reason that the defendant is not chargeable with negligence, as he owed no duty whatever to plaintiff respecting the premises in question. The plaintiff came to the premises on his own business, for his own advantage, to serve one of his own customers, and not for defendant’s benefit or gain. He was not invited, enticed or allured therein, and the defendant is not within the rule applying to inn-keepers, store-keepers or owners of halls of entertainment. The plaintiff at most was suffered or permitted to enter and to use defendant’s property, and he was therefore a mere licensee, entering upon and using the premises subject to all risks (Converse v. Walker, 30 Hun, 596 ; Victory v. Baker, 67 N. Y. 366 ; Clancy v. Bryne, 56 Ib. 29 ; Jaffe v. Harteau, 56 Ib. 398 ; Keyser v. Herth, 36 Super. Ct. 348).
    III. The plaintiff was not injured by anything done or omitted by defendant, but solely by his own careless use of defendant’s property. He managed the elevator himself in his own way and free from defendants’ control. He placed twelve bottles of beer standing loose on the elevator, and obviously only a slight jar was required to overturn them. Instead of operating the elevator slowly and steadily, he grew impatient and jerked it, which doubtless overturned and caused the fall of the bottles. The plaintiff testifies : “I pulled it steady, but sometimes when I got impatient I jerked it; then I would rest; I only rested once ; I did not jerk it all the way ; I gave several long pulls, and now and then a jerk.”
    A bell and tube were within reach for the purpose of communicating with the upper floors. Instead of using them or attempting to do so, he placed his head inside the shaft in a position which he must have known to be one of danger. The circumstance that the janitor told him so to do, does not make the defendant hable. The fact that a person is directed to do a reckless and foolhardy act fur-rushes no excuse to the person doing the act. He is as well' able as the other to judge of the prudence of the act in question (Wilkinson v. Farrie, 1 H. & C. 683).
    But even then, nothing of defendant’s injured him. No part of the machinery broke or fell upon him. The injury was caused by his own bottle, which he himself had placed on an elevator which he was managing, and the bottle fell upon him owing to the reckless manner in which the elevator was managed.
    The injury is quite as consistent with plaintiff’s fault and more so, than it is with defendant’s negligence, and in such cases it is the duty of the court to dismiss the complaint (Cordell v. N. Y. C. & H. R. R. Co., 75 N. Y. 330; Reynolds v. Same, 58 N. Y. 248).
    
      Richard S. Newcomb,
    
    attorney and of counsel for respondent, urged:—I. Whatever may be the law as to the responsibility of a landlord, in the absence of contract for damages occasioned by premises becoming untenantable (which was the case in 56 N. Y. 398), it is settled law that if a man negligently or defectively constructs a building, and persons lawfuly there are injured by that defective construction, the owner is hable. (See Shearman & Redfield Negligence, § 56). Even as between master and servant, if the machinery furnished be defectively constructed, the master is hable for injuries the servant sustains (Painton v. Northern Central R. Co., 83 N. Y. 7 ; Kain v. Smith, 89 Ib. 375).
    II. There was therefore evidence of faulty construction, and the jury by their verdict have said it was so constructed and so maintained after defendant had owned it for six months.
    III. The elevator was there for the delivery of goods ; • and ah the defendant says is, “I do not know of any regulation that forbade them using the staircase.” Being there for the delivery of goods, if it was improperly constructed and the plaintiff sustained damage, without his fault, the owner is hable.
    
      IV. The plaintiff did not contribute to the accident by any negligence on his part. He did not work the machinery supplied by the defendant “in his own way,” but according to the instructions of the defendant’s janitor, the man put in charge by the defendant. “ I was directed by the janitor [to put my head in that elevator] to see if there w;as a light thrown out upon the shaft,” and the janitor don’t deny it, and beside, a man could only raise the elevator without exposing his body within the shaft if he was in the habit of raising the elevator.
    At all events, the question of contributory negligence was for the jury; courts only decide questions of negligence when facts are undisputed (Dickins v. N. Y. Central R. Co., 1 Keyes, 23 ; Hawley v. Northern Central R. R. Co., 82 N. Y. 379).
    Whether the “jerking” spoken of, or the way the bottles were placed on the platform, contributed to the accident, was a question as to which different inferences might be drawn, and when that is so, the matter belongs to the jury.
    To justify a non-suit, on the ground of contributory negligence, the undisputed facts must show the omission or commission of some act which the law adjudges negligence ; the negligence must appear so clearly that no construction of the evidence or inference drawn from the facts will warrant a contrary conclusion (Stackus v. N. Y. Central R. R. Co., 19 N. Y. 464).
    It is always a question for the jury when different inferences may be drawn from the evidence.
   By the Court.

Sedgwick, Ch. J.

The pleadings dispose of some of the positions taken by appellant on the argument. The answer admitted that the elevator was constructed for the purpose of raising goods to the several occupants of the building, and further, that, as was customary, the plaintiff raised the elevator to the fourth floor. The defendant, having furnished the elevator for use by persons in the situation of plaintiff, and being in the actual control of it, was under an obligation to the plaintiff to use an ordinary degree of care, in having it, or keeping it safe, for customary use. Indeed, on the trial there was no exception taken to the manner in which the issue as to the defendant’s negligence was left to the jury. The only question of law upon the trial, related to the plaintiff’s contributory negligence, the defendant claiming that there was no evidence that the plaintiff was free from contributory negligence. As to what the plaintiff did, and what he omitted to do, there was direct evidence from the plaintiff himself and from the janitor of the building. The latter was present at the accident. His testimony opposed that of the plaintiff in one important particular. The jury, however, was the competent judge to find whether or not the plaintiff’s testimony was true.

On this point, it cannot be maintained that it was contributory negligence for the plaintiff himself to pull up the elevator by a rope. The answer admits that he did that, as was customary, which implies a sanction by the defendant.

It is argued that it does not appear that the plaintiff used proper care in respect of his placing bottles, with beer in them, upon the platform, and then in hauling upon the rope as he did. It is said that the bottles should not have been deposited without being placed in a basket, or something equivalent, to prevent them, or some of them, from toppling over, and that the overturning of one might reasonably have been expected if the elevator were in the best condition, but that it was further brought about by the plaintiff not pulling upon the rope with a constant and steady strain, but in a jerking, intermittent manner.

The janitor, as the jury had a right to find, was asked by the plaintiff, on entering the building, how he was to get the bottles up. The janitor went with him to the dumb-waiter and told him to place the bottles on the waiter and pull it up as far as he could. The janitor stood so that he observed the manner in which the plaintiff pulled. In placing the bottles upon the waiter, the plaintiff grouped them together as close as it was possible to do, and other little articles, away from the front and towards the back part of the platform. The bottles were champagne bottles. It did not appear, as a matter of law, that an ordinarily prudent man would anticipate that such bottles would be likely to fall over when shaken by the ordinary use of the elevator, if it were properly constructed. The same is to be said, in respect of the use the plaintiff did make of the elevator. As a matter of law, it could not be determined that the plaintiff should have thought that the way in which he raised the elevator was not such as was necessary to its use, as it was. Moreover, as it appeared, as the jury might find, that in all he did, he acted under the instruction and by the assent of the janitor, who, as they might also find, had been placed by the owner in charge of the elevator, to regulate and direct its use by others, it was a question for the jury as to whether the case did not show that the plaintiff was not negligent, when he acted as he did, under the direction of defendant’s servant (Sheridan v. Brooklyn, &c. R. R. Co., 36 N. Y. 39 ; Clark v. Eighth Av. R. R. Co., 36 Ib. 135 ; Filer v. N. Y. Central R. R. Co., 49 Ib. 47; also 59 Ib. 351 ; Maher v. C. P. N. & E. R. R. Co., 67 Ib. 52 ; Spooner v. The Brooklyn City R. R. Co., 54 Ib. 230).

The injury was received by one of the bottles falling from the elevator, when it had been raised some distance, upon the plaintiff’s head, as he was looking up the shaft, for the purpose of seeing if a light shone into the elevator. It is claimed that this was an act of negligence. It could not be said, as matter of law, that it was negligence, unless it had been determined that the plaintiff in the use of prudence, should have thought that there was danger of a bottle falling, and that has already been said to have been for the jury to pass upon. In this respect again, the plaintiff acted by the direction of the janitor, as he swore; the janitor testifying to the contrary.

The issue of defendant’s negligence was left to the jury without objection. It is more than doubtful whether, on the motion for a new trial, the defendant could claim a right to have the verdict set aside on the ground that it was against the evidence, or the preponderance of testimony. If he could, my opinion is that the verdict cannot be set aside on either ground. The state of the plaintiff’s testimony as to contributory negligence has been examined. As to defendant’s negligence, there were facts tending to show that by the original construction of the elevator, as well as by its subsequent condition, caused by wear, the-raising it was more difficult than it should have been, and called for an irregular and unsteady pull upon the rope, and also that in raising the platform its method of construction occasioned its joggling movement inside of the shaft.

Judgment affirmed, with costs.

Van Voest and Freedman, JJ., concurred.  