Tousey v. Roberts

• Decision Date: 03 May 1889
• Parties: TOUSEY v. ROBERTS.
• Court: New York Court of Appeals Court of Appeals

114 N.Y. 312

21 N.E. 399

TOUSEY

v.ROBERTS.¹

Court of Appeals of New York,

Second Division.

May 3, 1889.

Appeal from superior court of New York city, general term.

Action by Rose Tousey against Lewis Roberts, to recover for injuries sustained by falling in the elevator shaft of defendant's house, through his alleged negligence. Judgment for plaintiff for $2,500, which was affirmed by the general term, and defendant appeals.

Norman T. M. Melliss, for appellant.

William H. Townley, for respondent.

FOLLETT, C. J.

In 1883 the defendant owned a house on West Fifty-Sixth street, in the city of New York, known as ‘The Winfield,’ which was divided into apartments. The plaintiff's husband had a written lease from the defendant of an apartment on the fourth floor, in which the plaintiff and her husband dwelt. The usual mode of going to and from this apartment was by an elevator, which was operated by the defendant for the accommodation of the occupants of the building. The elevator shaft extended seven feet below the ground floor. The door through which the car was entered from this floor was so constructed and fastened that it could be opened by persons standing in the hallway. Between 6 and 7 o'clock in the afternoon of May 7, 1883, the plaintiff, accompanied by a lady, entered the hallway from the street, walked towards the elevator, and as she approached it the door was thrown open, she passed through, and, the car being above, she fell to the bottom of the shaft, sustaining external and internal injuries. This action is for the recovery of the damages sustained, and it is alleged in the complaint (1) that the hallway on the ground floor which led to the elevator was not lighted; (2) that the door through which the car was entered from the hallway was fastened so it could be opened from the hallway; (3) that defendant employed or permitted a boy to run the elevator, who negligently opened the door, and thereby invited the plaintiff to pass through it when the car was in the upper part of the shaft. It was conceded at the trial that at the time of the accident there was no artificial light in the hallway, but whether it was then so dark that a light was required was a disputed fact. It was also conceded that the door through which the car was entered from the hallway could be opened from the hallway, and that upon the occasion in question it was so opened by a boy by the name of Reilly, a younger brother of the person employed by the defendant to run the elevator. Witnesses called by the plaintiff testified that young Reilly had run the elevator on many occasions before the accident, while the witnesses called by the defendant testified that he had never run it. The defendant insisted that the plaintiff contributed to the accident by failing to observe that the car was not in place; urging that, if she had looked attentively, she could have seen that it was absent, or, if she had listened, that she could have heard it descending from above.

At the close of the plaintiff's case the defendant moved to dismiss the complaint, upon the ground that no negligence had been shown that was attributable to the defendant, or to any of his employés; and, when both parties rested, the defendant asked the court to direct a verdict in his favor, upon the ground above stated, and upon the further grounds that young Reilly was not defendant's employé, and that the plaintiff was guilty of contributory negligence in not looking before she walked through the door. Both motions were denied, and the defendant excepted. In this there was no error. The defendant assumed to operate the elevator for the benefit of his tenants, and he was required to exercise...