Sciolaro v. Asch

• Decision Date: 04 March 1910
• Citation: 198 N.Y. 77,91 N.E. 263
• Parties: SCIOLARO v. ASCH.
• Court: New York Court of Appeals Court of Appeals

198 N.Y. 77

91 N.E. 263

SCIOLARO

v.ASCH.

Court of Appeals of New York.

March 4, 1910.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Frances M. Sciolaro against Joseph Asch. From a judgment of the Appellate Division (129 App. Div. 86,113 N. Y. Supp. 446) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.

Edward P. Mowton, for appellant.

Herbert J. Hindes, for respondent.

WERNER, J.

This action was brought to recover damages for injuries sustained by the plaintiff while endeavoring to alight from a passenger elevator in a building owned by the appellant, Asch. The facts of the case are practically undisputed. The defendant, Asch, is the owner of a nine-story building in Washington Place, in the city of New York, divided into lofts which are let out to tenants for various manufacturing purposes. Among these tenants were the firm of Reiter, Fruhauf & Co., who were engaged in the manufacture of clothing, and by whom the plaintiff was employed as a piece worker. On the 23d day of December, 1905, at the close of the working day, the plaintiff stepped upon the elevator at the ninth floor, carrying in her arms a bundle of clothing, and took a place in the corner furtherest removed from the door. A number of other persons entered, and the descent was made to the ground floor. The operator in charge stepped out of the car into the hall, and the other passengers had passed out when the plaintiff started to leave. While she was in the act of alighting the car started upward. She screamed and thus attracted the attention of the operator, who reached up and pulled her down to the floor of the hall, but not until after she had been caught and crushed between the floor of the ascending car and the upper part of the frame of the door or opening leading from the hall to the elevator shaft. Then the operator stopped the car. The elevator is described as a ‘combination’ designed for passengers and freight, and was one of several of similar character used by the tenants, their patrons, and employés. It was of a pattern in common use, moved by electric power, operated by means of a cable extended through the car and the length of the shaft. To raise the car, it was necessary to pull the cable downward about 12 inches, and to lower the car the process was reversed. The elevator and its appurtenances were apparently in good repair, and the cause of its starting upward at the time of the accident is wholly unexplained. The firm by whom the plaintiff was employed occupied the ninth floor or loft of the building under a lease which, with other privileges, included ‘steam heat and usage of passenger and freight elevators in common with other tenants of the building.’ Instead of operating these elevators through employés of his own selection, the owner had entered into a contract with the National Steam & Operating Company, under which the latter had engaged to take charge of and operate the steam and electric plant, including the elevators, and for that purpose to furnish competent engineers, firemen, and elevator attendants. This contract was continued from year to year, and was in force when the plaintiff was injured. Upon these facts this action was brought against Asch, the owner of the building, and the National Steam & Operating Company. The complaint charges the defendants jointly with negligence in the operation and maintenance of the elevator, but the evidence failed to establish any structural defect or lack of repair, and the case went to the jury solely upon the theory that, if any negligence had been shown, it rested in the undisputed fact that the attendant or operator had left his car before all of the passengers had alighted. The jury rendered a verdict against both defendants, and from the judgment entered upon it the defendant Asch appealed to the Appellate Division, where there was an affirmance by a divided court. The case is now in this court upon the appeal of Asch alone.

The briefs of counsel and their oral arguments cover a much wider range of discussion than is warranted by the record. We are not concerned with the inquiry whether the elevator may have been out of repair, for there was no evidence upon that subject. Neither need we decide whether the case might have been submitted to the jury under the rule of res ipsa loquitur, since that rule was distinctly eliminated by the charge of the court. Upon both of these questions, the rulings were unequivocally favorable to the appellant. The only evidence tending to support the plaintiff's allegations of negligence in the operation of the elevator rested upon the undisputed fact that the operator had left the elevator before the plaintiff had alighted therefrom. This was the narrow ground upon which the case went to the jury under instructions which elicited no exception from counsel for either party. These instructions are, therefore, the law of the case, and the verdict of the jury is binding upon the appellant, unless he is right in his contentions (1) that it was error to receive in evidence the lease from him to the firm by which the plaintiff was employed; and (2) that it was error for the court to charge the jury that the...