Rohrbacher v. Gillig

• Citation: 96 N.E. 733,203 N.Y. 413
• Parties: ROHRBACHER v. GILLIG et al.
• Decision Date: 28 November 1911
• Court: New York Court of Appeals

203 N.Y. 413

96 N.E. 733

ROHRBACHER

v.GILLIG et al.

Court of Appeals of New York.

Nov. 28, 1911.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Philip Rohrbacher against Mary Ann Gillig and others . From a judgment of the Appellate Division (140 App. Div. 883,124 N. Y. Supp. 1128) affirming a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered.

Frank Gibbons, for appellants.

Hamilton Ward, for respondent.

GRAY, J.

This action was brought to recover damages for the personal injuries sustained by the plaintiff from falling down an elevator shaft in a building owned by the defendants. He obtained a verdict in his favor, and the judgment, upon that verdict, has been affirmed by the Appellate Division, by the divided vote of the justices.

[1][2] These were the circumstances. The plaintiff, a man of 56 years of age, had occasion to enter the building for the purpose of transaction some business with tenants upon the fifth floor. Its five floors were leased out to several tenants; the ground, second, and third floors being used as a restaurant, and the fourth and fifth floors for other business purposes. The entrance to the building from the street admits to a hall, which extends some distance back into the building. Immediately, upon entering on the ground floor, appears a stairway, giving access to all of the upper stories. Passing this stairway, the hall extends back and at its end are two doorways; one on the right affording entrance into the restaurant and the other terminating the hallway and opening into the shaft of an elevator, intended and used only for freight purposes by the tenants of the upper floors. This latter door opened outwards into the hall, and on the wall above was the sign of ‘Mindel's Dining Parlors.’ In the afternoon of the day in question the plaintiff entered the building, and, according to his testimony, saw the broad stairway leading up from the hall; but he was deterred from entering it by noticing persons walking about in the upper hall. He thought it was a part of the restaurant, and that he could find another flight of stairs. So he went on. The hallway was so dark that he could not see distinctly where he was going; but, continuing ‘at his regular gait,’ he saw, in front of him, a door half open, and, stepping in to find another stairway, fell to the bottom of the elevator shaft. It was the first time he had been in the building. The defendants did not undertake to keep the hallway lighted, and the lock upon the elevator door was broken. The trial court denied motions, which were made by the defendants, at the close of the plaintiff's case and at the close of the whole case, for the dismissal of the complaint and for the direction of a verdict upon the grounds of a failure to show negligence in the defendants, or that the plaintiff was free from contributory negligence. The case was sent to the jury upon the instruction, acquiesced in by the plaintiff, that the negligence charged against the defendants was that they ‘permitted the hallway to be in an unlighted condition, that this doorway was out of repair, the door defective.’

It is very clear, I think, upon the facts, that the defendants were not shown to have neglected any legal duty to the plaintiff, with which they could properly be said to be chargeable, and it seems equally clear that the plaintiff contributed to the result of his ill-advised venture in the hall by a failure to exercise that caution which the situation should have suggested to him. It was not shown that the defendants had assumed any obligation to keep the hallway lighted, or that the provisions of the statute applicable to tenement houses, or tenant factories, had any application. A broad well-lighted stairway led to the floors above. There was nothing to indicate the existence of any other stairway or of any elevators. The plaintiff had a right to be upon the premises, and if, upon...