Racine v. Morris

• Decision Date: 21 March 1911
• Citation: 201 N.Y. 240,94 N.E. 864
• Parties: RACINE v. MORRIS et al.
• Court: New York Court of Appeals Court of Appeals

201 N.Y. 240

94 N.E. 864

RACINE

v.MORRIS et al.

Court of Appeals of New York.

March 21, 1911.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Margaret Racine, as administratrix of Louis T. Racine, against Theodore W. Morris, and others impleaded. From a judgment of the Appellate Division (136 App. Div. 467,121 N. Y. Supp. 146), affirming a judgment for plaintiff, defendants appeal. Affirmed.Theodore W. Morris, Jr., for appellants.

Clarence J. Shearn, for respondent.

COLLIN, J.

The intestate, a patrolman of the city of New York, while on duty on Saturday, December 8, 1906, at 7 o'clock and 25 minutes in the afternoon, saw a door contiguous to the sidewalk of the building occupied by the defendants, No. 10 Vestry street, partly open. The verdict of the jury established the fact that the defendants had thus left it at the close of business in the afternoon. He, after summoning a fellow patrolman, pushed open the door, stepped through the doorway into the unlighted and dark interior and to a freight elevator shaft, extending upward from the basement, to the bottom of which he fell, receiving injuries which caused his death. The plaintiff, alleging the negligence of the defendants, brought this action to recover damages therefor. Between the door and the edge of the shaft nearest it was a floor space of two feet. Between the shaft and the sidewalk were three doors, of which that entered by the intestate was one, through which when opened the goods of defendants were transported between the street and the elevator. Between the shaft and the three doors was a perpendicular gateway of the width of the shaft in which a lattice gate moved automatically up and down in grooves so that ordinarily when the elevator was on a level with the first floor the gate would be up and when its was above the first floor the gate would be down, barring entrance to the shaft. When the intestate entered, the gate was up and there held by a nail. The elevator itself stood at about the level of the second floor. The shaft was entirely inclosed by wooden and glass partitions in which were doors leading to the various floors.

During the trial the plaintiff's attorney affirmed to the court that the basis of the action was section 95 of the Buinding Code of the city of New York, upon which and section 761 of the charter of the city plaintiff relied to prove the negligence of the defendants through the violation of their provisions. The court charged the jury that the defendants owed under the common law no duty to the intestate, and further charged that the law applicable to the defendants' duty in this case was that promulgated in section 95 of the Building Code, and that, if the defendants complied with it by using reasonable care and prudence in closing the door as their evidence described, the intestate met his death through no fault of theirs and they cannot be held responsible therefor.

That part of section 95 of the Building Code material here reads as follows: ‘Sec. 95. In any building in which there shall be any hoist way or freight elevator or well hole not inclosed in walls constructed of brick or other fireproof material and provided with fireproof doors, the openings thereof through and upon each floor of said building, shall be provided with and protected by a substantial guard or gate and with such good and sufficient trapdoors as may be directed and approved by the Department of Buildings; and when in the opinion of the commissioner of buildings having jurisdiction, automatic trapdoors are required to the freight openings of any uninclosed freight elevator, the same shall be constructed so as to form a substantial floor surface when closed and so arranged as to open and close by the action of the elevator in its passage either ascending or descending. * * * Such guards or gates shall be kept closed at all times, except when in actual use, and the trapdoors shall be closed at the close of the business of each day by the occupant or occupants of the building having the use or control of the same.’ The defendants left the door open and the lattice gate securely raised, and obviously did not conform with the requirements of the section.

[1] The theory upon which the action was tried, submitted to, and decided by the jury must be retained. Consequently and in accordance therewith we assume, without discussion or expression of opinion, that under the common law the defendants owed no duty to the intestate, and that the action is purely statutory. A claim of the defendants' counsel, which we have to consider, is that section 95 of the Building Code was a regulation relating to the manner in which the defendants should thereafter exercise reasonable care toward those to whom they owed, prior to its adoption, the duty of care, but did not extend that duty.

[2] The Building Code was enacted October 24, 1899. The revised charter of the city of New York of 1901 confirmed its provisions (Laws 1901, c. 466, § 407), which, therefore, are to be given the same force within the limits of the city, as a statute. City of New York v. Trustees, etc., 85 App. Div. 355,83 N. Y. Supp. 442, affirmed on opinion below, 180 N. Y. 527, 72 N. E. 1140.

[3] The federal and state Constitutions alone bound the freedom and power of the Legislature. Its authority while not infracting their provisions is plenary and unchecked, for it is that of the people of the state.

[4] The Legislature may by statute create a duty unknown to the common law, a violation of which statute will give a cause of action for damages to one to whom the duty was owing. Willy v . Mulledy, 78 N. Y. 310, 34 Am. Rep. 536;McRickard v. Flint, 114 N. Y. 222, 21 N. E. 153;Huda v. American Glucose Co., 154 N . Y. 474, 48 N. E. 897,40 L. R. A. 411;Pauley v. Steam G. & L. Co., 131 N. Y. 90; Couch v. Steel, 77 Eng. Com. L. 402; Groves v . Wimborne, L. R. (2 Q. B. 1898) 402. It may enact a prohibitive or mandatory statute which, being violated, subjects the offender to an...