Digelormo v. Weil

• Decision Date: 22 November 1932
• Parties: DIGELORMO v. WEIL et al.
• Court: New York Court of Appeals Court of Appeals

260 N.Y. 192

183 N.E. 360

DIGELORMO

v.WEIL et al.

Court of Appeals of New York.

Nov. 22, 1932.

Action by Michael Digelormo, as administrator of the goods and chattels of Gelardo Digelormo, deceased, against Benjamin J. Weil, Watson Elevator Company, Incorporated, and another. From a judgment of the Appellate Division (235 App. Div. 780, 255 N. Y. S. 1021), affirming a judgment of the Trial Term, entered upon a verdict of a jury in favor of plaintiff, defendants appeal by permission of the Court of Appeals.

Reversed, and complaint dismissed.Appeal from Supreme Court, Appellate Division, First department.

James J. Mahoney and George J. Stacy, both of New York City, for appellant Benjamin J. Weil.

John P. Smith and Walter G. Evans, both of New York City, and Thomas F. Keane, for appellant Watson Elevator Co., Inc.

Joseph Sussman, of New York City, for respondent.

CRANE, J.

Judgment has been recovered in negligence against the owner of an apartment house and the constructor of an elevator therein, for the death of Gelardo Digelormo, a boy six years of age. The accident happened July 27, 1927. The large apartment building of two sections, known as No. 1975 Walton avenue, New York City, was owned and maintained by the defendant Benjamin J. Weil. In it for the use of tenants was an electric push-button passenger elevator built and constructed by the defendant Watson Elevator Company, Inc. The elevator was the work of the company; the shaft in which it ran and the doors and space leading to the elevator were the work of the architect and builder. The measurements of the shafts were taken wholly from the architect's plan. The elevator equipment included rails, car, motor, machinery, and safety interlocks, excluding safety doors, saddles, jambs, etc.

The safety interlock was installed on the shaftway door to prevent the operation of the elevator unless the shaftway door was closed and locked. The Watson Elevator Company, Inc., did not construct nor install the shaftway door. On the elevator itself was a mesh gate kept closed by a pneumatic plunger. This was separate and distinct from the shaftway door. Between the two was a floor space of about eight inches. The measurement from the inside of the gate track of the elevator to the inside of the shaftway door was, to be exact, eight and eleven-sixteenths inches. This space is the essential feature of this case; upon its existence rests whatever case the plaintiff has established.

The elevator was installed in accordance with all the requirements of the Bureau of Buildings and was approved by that department of the city government in a final certificate. The general contractor, not the elevator company, constructed the space between the shaftway door and the elevator gate. The flooring of the space was part of the building. The Watson Elevator Company, Inc., cannot, therefore, be charged with any negligence in creating this space or in permitting it to exist. No complaint is made by the plaintiff of any other defect than this space; the elevator and the equipment installed by the company were in good working condition.

To complete the description it remains to be said that the elevator operated mechanically by push buttons; a button touched inside the elevator sent it to the required floor or a button worked on any floor would bring up the elevator, provided that in both instances both the elevator gate and the shaft door were closed.

The cause of the accident is extremely vague and uncertain; in fact, the plaintiff has failed to show how it happened or that anybody's negligence is responsible for it.

On the day mentioned Michael Digelormo was delivering ice to the apartments and had with him his helper, Johnny Savino, and the boy Gelardo, the deceased. The time was between 8 and 9 o'clock in the morning. The father left the two boys and went to deliver ice. Savino and Gelardo took the automatic elevator to the second floor, where they boty left it. To do so they had to open and shut the shaft door and elevator gate before the elevator would move, and of course they had to open both to get out on the second floor. After they got out both doors and gate were closed. Savino left Gelardo in the hallway near the elevator to go into apartment 2E to take ice off the dumb waiter. He was gone two or three minutes and when he came back he found Gelardo in the elevator at the third floor, dead; his head and body were crushed between the elevator and the floor of the building. No one saw the accident or knows how it happened. Gelardo had no business on the elevator and no occasion to go up to the next floor; he was to wait in the hall for Savino. To get into the elevator the boy had to open the shaft door and the elevator gate, close both, and push a button. The theory of the plaintiff is that the boy opened the shaft door, stepped into the space between it and the gate, the shaft door must then have swung to and inclosed him in the space, and then somebody on some other floor must at just that moment have pushed a button and caused the elevator to rise, carrying the boy up with it. This is altogether too highly speculative to be the basis for a recovery in negligence.

No evidence is produced to show that any person was on any of the floors at that time. If Gelardo had curiosity and capacity sufficient to leave Savino and open the shaft door, which operated on springs, he could easily have gone further and...