McRickard v. Flint

• Decision Date: 23 April 1889
• Citation: 21 N.E. 153,114 N.Y. 222
• Parties: McRICKARD v. FLINT et al.
• Court: New York Court of Appeals Court of Appeals

114 N.Y. 222

21 N.E. 153

McRICKARD

v.FLINT et al.¹

Court of Appeals of New York, Second Division.

April 23, 1889.

Appeal from common pleas of New York city and county, general term.

Action by Samuel McRickard against George C. Flint and John J. Hand. A judgment for plaintiff was affirmed on appeal to the general term of the common pleas of New York city and county, and defendants appeal to this court. For former appeal, see 97 N. Y. 641.

George H. Adams, for appellants.

Christopher Fine, for respondent.

BRADLEY, J.

On February 4, 1880, the plaintiff entered the defendants' building and place of business on West Fourteenth street in the city of New York, and fell into an uncovered elevator hatchway, and was injured. He claims that such injury was occasioned wholly by the negligence of the defendants. This building was a manufactory of the defendants, and the elevator was there for the purpose of their business. The principal ground of the alleged negligence of the defendants is that they had filed to comply with the statute, which provided that ‘in any store or building in the city of New York in which there shall exist or be placed any hoistway, elevator, or well-hole, the openings thereof, through and upon each floor of said building, shall be provided with and protected by a substantial railing, and such good and sufficient trap-doors with which to close the same as may be directed and approved by the superintendent of buildings; and such trap-door shall be kept closed at all times except when in actual use by the occupant or occupants of the building having the use and control of the same,’ etc. Laws 1874, c. 547, § 5. There was no railing or any obstruction in the way of approach to this elevator shaft from the front door opposite to it, and, although the evidence tends to prove that the elevator was not in actual use at the time the plaintiff so entered and fell, there was no trap-door over the hole. The exercise of the duty imposed upon the defendants by this statute was not dependent upon any action of the superintendent of buildings. They could not properly delay for him to direct, but it was for them to call on him for direction and approval in that respect. Willy v. Mulledy, 78 N. Y. 310. The situation had been the same for several years, and it does not appear that any direction or approval of the official had been obtained from or given by him. The failure to perform a duty imposed by statute, where, as the consequence, an injury results to another, is evidence upon the question of negligence of the party chargeable with such failure. Jetter v. Railroad Co., 2 Abb. Ct. App. 458; McGrath v. Railroad Co., 63 N. Y. 523;Massoth v. Canal Co., 64 N. Y. 524;Willy v. Mulledy, 78 N. Y. 310;Knupfle v. Ice Co., 84 N. Y. 488. It is not conclusive evidence of negligence, and the question presented here is, whether there was error in the charge of the court to the effect that any one constructing or using an elevator upon his premises is considered as doing so with knowledge of the law in that respect, and if such person fails to comply with the requirements of the statute he is prima facie guilty of negligence. The defendants' counsel excepted to so much of the charge as states that ‘a failure to comply with the provisions of the law of 1874 is prima facie evidence of negligence.’ As an abstract proposition there was no error in the charge. It had reference to the failure to perform the statutory duty unqualified by any circumstances bearing upon the question, and was not necessarily applied to the present case so as to treat the question of negligence of the defendant as one of law. It was a question for the jury, and, upon the request of the defendants' counsel, they were instructed that the plaintiff could not recover unless the jury found that the defendants were negligent in the use of their premises; and that if the condition of the doors and the elevator, and its use by the defendants, were reasonable, the plaintiff could not recover. The evidence was such as to justify the conclusion that the defendants were chargeable with negligence, and they owed to any person who should lawfully go into the building the duty which the statute imposed upon them to do him no injury by their negligence in that respect. That duty they owed to the plaintiff who went to the premises for a legitimate business purpose. The statute is a salutary one to require the owners or occupants of business places in the city to guard, so far as required by it, against danger of personal injury to those lawfully there, and to which they otherwise might be exposed. Its purpose was to provide against personal peril, and it may be assumed that the legislature was advised that such provision was essential to such protection. In view of this statute the cases cited upon the question of the defendants' negligence, and their duty in that respect, which they owe to others, do not necessarily have application to the present case.

But the defendants' negligence alone will not support the plaintiff's recovery. The burden was with him to show that he was free from negligence, and, if he failed to make it appear that he was without fault in that respect, the plaintiff was not entitled to recover. It is urged on the part of the defense that upon the facts as presented by the evidence the plaintiff must, as a matter of law, be chargeable with contributory negligence. This evidently was the view taken on the first trial,...