Mitchell ex rel. Mitchell v. Keene , 67 N.Y. St. Rep. 731 ( 1895 )

Van Brunt, P. J.:

The evidence upon the part of the plaintiff shows that he was a messenger boy working for the American District Telegraph Company ; that the premises in question were known as the Windemere Flats or the Windemere Hotel, situated on the southwest corner of Fifty-seventh street and Ninth avenue; that the plaintiff on the sixth of June had two telegrams to deliver to persons who were resident in said flats. There was an elevator in the building, and upon entering the building the plaintiff went to and stepped into-the elevator. The man in charge of the elevator was there; the boy handed him the telegrams and he took them and then handed them back. When he had handed the telegrams back he pulled the rope and let the elevator go up, and it stopped at the third floor. The boy approached the doorway of the elevator and stood with his left foot out waiting for the door to be opened. The elevator man then pulled the rope again, giving no notice to the boy, the elevator went up and the boy’s foot was caught between the floor of the elevator and the top of the door of the elevator shaft and injured.

Upon these facts the jury found a verdict in favor of the plaintiff, and from the judgment thereupon entered and from the order denying motion for new trial this appeal is taken.

It is claimed the complaint should have been dismissed because no negligence had been proven against the defendant. It is urged that the stoppage of the elevator by the elevator man without saying anything, or having said a word to intimate that it was the floor at which the plaintiff was to alight, and without opening the door of the elevator shaft, should not and could not have been considered by the plaintiff as an intimation that he had arrived at the floor at which he was to get out of the elevator. We think, however, this is error. There were no other persons in the elevator; the elevator man knew the persons whom the plaintiff desired to see for the purpose of delivering the dispatches; and when he stopped the elevator the plaintiff had a right to assume that he had arrived at the floor upon which he was to alight. It was not negligence upon his part to place himself in a position to leave the elevator -as soon as the door of the shaft should be opened. After such stoppage it was the duty of the elevator man, before starting the car again, to see that there was no danger in starting the car, or to give the plaintiff some notice that he had not arrived at his destination. This he utterly failed to do. He started the car, the car itself having no door to protect the parties who were riding in it; the plaintiff’s foot was caught and crushed.

We think the jury had a right from these facts to infer negligence upon the part of the person in charge of the elevator and a want of negligence upon the part of the plaintiff.

The judgment and order appealed from should be affirméd, with costs.

O’Brien and Parker, JJ., concurred.

Judgment and order affirmed, with costs.