Harris v. Perry , 30 N.Y. Sup. Ct. 244 ( 1880 )

Barnard, P. J.:

Tbe proof of negligence upon tbe part of tbe defendants is sufficient. They were stove dealers at No. 84 Beekman street, in tbe city of New York, and occupied tbe upper stores of tbe building. In tbe basement they were accustomed to receive orders for goods and to deliver goods from there.

Tbe first story of tbe building was occupied by Hayden & Go. There was an elevator, extending from tbe basement to defendants’ rooms above, which was used by both defendants and Hayden & Go. Tbe elevator pit extended below tbe basement floor. Tbe plaintiff, in May, 18Y8, went to tbe basement to get goods he had ordered from defendants, and found no one to deliver tbe goods. It was dark in tbe basement, and tbe plaintiff, in attempting to get to tbe elevator, to call through it to some one representing defendants, to come and deliver tbe goods, was precipitated into tbe pit and much injured. There was not sufficient light to see, nor was there any attempt to close the pit. The defendants, both by the common law and by the statute (Laws of 1874, ch. 547), were bound to use reasonable care and diligence in guarding against the danger from this open pit which sunt beneath the floor of the premises ; there was no guard; there was no sufficient light; there were no chains to prevent one from, falling in. The question of the contributory negligence upon plaintiff’s part was properly left to the jury. This is the general rule. (Thurber v. Harlem Bridge, Fordham & Morrisania R. R. Co., 60 N. Y. 326,) If the finding upon this question had been different from what we believed to be the true result of the evidence, it would not be proper upon appeal to reverse if there was merely a conflict of evidence. There is nothing from which we can say that in this case the jnry have not found correctly. The plaintiff was guilty of no neglect; he went to get his goods in tne place from which he had been accustomed to get them ; he found no one to answer him ; the place was dark and he knew of the elevator, but not that it extended below the basement floor; he attempted to communicate through the elevator opening above and was precipitated below the basement floor. He had the right to assume that the premises had no piciall.

Judgment affirmed, with costs.

Dykman, J„ concurred.