This action was brought to recover damages which the plaintiff is alleged to have sustained by reason of his falling down the elevator shaft in the police building in the city of Rochester.
It appears that one Smith was in the employ of the city, operating the elevator; that he ran it down to the ground floor, then stepped out and went to the front door of the building to notify the engineer that the elevator squeaked and needed oiling; he there met the plaintiff and one Murrell who were engaged in repairing the roof of the building and walked back with them; the plaintiff, being in the lead, stepped inside of the elevator shaft and fell to the cellar floor, receiving the injuries for which this action was brought. It appears that during the absence of Smith, one Karnes, another employee, a telegraph operator, arrived, entered the elevator and, as he states, nearly closed the door, leaving a space of about two inches, and then ran the elevator up to one of the floors above.
The controversy in this case is as to whether the door of the elevator shaft was open or closed. The testimony of the *Page 147 plaintiff and his companion Murrell is to the effect that the door was wide open. All the witnesses on the part of the defendant testify to the effect that it was partially or nearly closed. The trial court charged, as a matter of law, that if the jury found that the door was substantially closed, and that the plaintiff pushed it open and stepped into the well without looking to see whether the car was there, that he was negligent and could not recover. But if the door was open, then it was a question for the jury to determine from the evidence as to whether he used such care and caution as a reasonably prudent and cautious person would have used under the same circumstances in entering or attempting to enter the elevator well, without looking to determine whether the car was there or not. The jury having found a verdict in favor of the plaintiff, we must assume that it found that the door of the elevator shaft was open, and that that issue is disposed of in favor of the plaintiff. The negligence of the defendant's employee thus being established, the only other question that remains is as to whether the plaintiff was guilty of contributory negligence. That question was also submitted to the jury, and the finding was in his favor. I am of the opinion that, under the circumstances disclosed by his testimony and that of his associate, we cannot say as a matter of law that he was guilty of contributory negligence, or that there was no evidence to sustain the verdict. (Tousey v.Roberts, 114 N.Y. 312, 316.)
It is now contended that the city of Rochester in maintaining and operating an elevator in the police building was engaged solely in the discharge of a public governmental function, distinguishable from a municipal function, and that, therefore, it is not liable for the negligence of its servants. The duties of policemen, as prescribed by statute, pertain to the executive branch of the government, and the fact that the statute has provided for their appointment by municipal officers does not change the character of their duties, or operate to make the municipality liable for their negligence while engaged in the discharge of such governmental *Page 148 function. It, consequently, follows that when a policeman in an endeavor to shoot a mad dog negligently injures an individual, the municipality is not liable. (McKay v. City of Buffalo, 9 Hun, 401; affirmed, 74 N.Y. 619.) The same rule obtains with reference to the board of health. The preservation of the health of the people of the state and their protection from infectious and contagious diseases is a governmental function, and although the legislature has provided for the establishing of local boards through appointment of municipal authorities, the servants or employees when actually engaged in the discharge of a duty pertaining to the preservation of such health, the municipality is not liable for their negligence or want of skill in the performance of that duty. Consequently, when an employee engaged in the driving of an ambulance wagon negligently struck and caused the death of a person, the city was held not liable. (Maxmilian v. Mayor, etc., of N.Y., 62 N.Y. 160.) It will thus be seen that the liability of the municipality depends upon the character of the service in which the servant is engaged. This question was considered in the case of Woodhull v. Mayor,etc., of N.Y. (76 Hun, 390). In that case an action had been brought against the city of New York and the city of Brooklyn, and it was conceded that the defendants owned and were operating a railway across the New York and Brooklyn bridge and were engaged in carrying passengers for hire. It was the contention of the plaintiff that he had paid his fare to be carried across the bridge, and while in the act of entering one of the cars a policeman, who was there engaged in performing the ordinary duties of a guard, closed the door against his leg, and that he remonstrated against such treatment. Thereupon the policeman entered the car, prevented the plaintiff from leaving it until it arrived at the other end of the bridge, and then arrested him, charged him with assault and battery, and took him before a magistrate, before whom he was tried upon the charge and acquitted. An action for false imprisonment was then brought and a recovery had, which was sustained in the General Term upon the ground *Page 149 that the policeman was stationed at the door as a trainman or guard, assisting passengers in or out of the cars; that such a service pertained to the municipality and was not governmental. An appeal was taken to this court and the judgment reversed, but upon the ground that the action was for false imprisonment and not for injuries received by reason of the shutting of the door against the plaintiff's leg. It appeared that the policeman had been a patrolman upon the bridge ten years, charged with the duty of preserving order, and that in making the arrest he was acting in his capacity as such policeman discharging a governmental function, for which the municipality was not liable for his negligence or misconduct; that his act in shutting the door was a separate and distinct act from that of subsequently arresting the plaintiff without proper cause. (150 N.Y. 450.)
Bearing in mind the distinction, to which attention has been called, we come to the consideration of the circumstances of this case. No claim is made that the elevator was out of repair, or that there was any defect which caused the injury to the plaintiff. The negligence, if any, was the negligence of the employee in leaving the door open when he removed the elevator to an upper floor. Was this employee discharging a governmental function? I think not. Undoubtedly the elevator was a convenience. It enabled the policemen to ride up and down. So were the cars running upon the New York and Brooklyn bridge a convenience. Policemen could avail themselves of them in going from one place to the other, as well as other street railroads, by which they could ride from their homes to the station house or to the territory which they were required to patrol and guard. But it never before has been suggested that the servants of a municipality or of a corporation, in aiding a policeman in his travels, are exercising a governmental function which would shield it from liability for the negligence of its employees. To carry the rule thus far might, as was suggested in the Woodhull case, permit cities to escape all liability for injuries by reason of the negligence of their servants by appointing them all policemen. We then answered *Page 150 that contention, to the effect that such could not be the case, "for it is very easy to distinguish between the duties of a servant and those of a policeman." It does not appear that the operator was a policeman, nor that he had any other duty to perform which pertained to a governmental function. He was employed and paid by the city, and to my mind he was rendering purely a municipal service and was not discharging the functions of a governmental officer.
It is also suggested that a room for the detention of prisoners was maintained in the police building, and that the maintaining of a jail or prison is a governmental function. It may be that the keeper of the room of detention is discharging a governmental function, but that question is not involved in this case and should not, therefore, now be decided.
The judgment should be affirmed, with costs.
EDWARD T. BARTLETT and HISCOCK, JJ., concur with WILLARD BARTLETT, J.; GRAY, J., concurs on second ground stated in opinion, and CULLEN, Ch. J., and WERNER, J., concur in result on the ground only of contributory negligence of the plaintiff; HAIGHT, J., reads dissenting opinion.
Judgment reversed, etc.