The plaintiff seeks to recover, under the statute (Code of Civil Procedure, section 1902), the damages for a neglect of the defendant through which her intestate was killed. The trial court, at the close of plaintiff's case, dismissed the complaint upon the familiar grounds that the plaintiff failed to prove that the defendant was guilty of negligence and that the intestate was free from contributory negligence, and ordered that the exceptions be heard in the first instance by the Appellate Division. The Appellate Division overruled the exceptions by a decision not unanimous.
The cardinal facts are: The intestate, about four o'clock in the afternoon of October 29, 1912, entered from the street the hall of an apartment house of the defendant in which intestate and his wife had lived as tenants for seven years, and walked to the entrance to the elevator in order that he might be taken to their apartment on the sixth floor. The door in the wall of the elevator shaft through which the elevator was reached was open. The intestate passed through it and fell to the bottom of the shaft. The injuries he thus received caused his death. The distance from the street entrance to that of the shaft was eighteen feet. The light in the hall was the day-light which came through the glass of the door at the hall entrance. Customarily, as the janitor of the house knew, the elevator, when not in use, stood with its floor *Page 309 level with that of the hall, the door stood open, the boy operating the elevator was visible in the hall and followed the passenger into the elevator. On the occasion in question the elevator boy was not visible and the janitor stood and for a minute or two had stood in the extreme left side of the open door grasping with his left hand the iron grill-work of the wall of the shaft and with his right hand stretched upwards within the shaft to the left under side of the elevator, to replace upon a pulley the cable. The width of the doorway was thirty-one inches. The floor of the elevator was five feet and nine inches higher than that of the hall. The height of the intestate was about five feet eight and one-half inches and his weight was about two hundred and thirty-five pounds. He stepped through the open door between its right side and the janitor who testified that he "heard this man come" and "felt something brush past me and thought I saw a shadow going down."
The plaintiff was entitled to go to the jury upon the issue of the defendant's negligence. The defendant was, as to the intestate, under the duty of seeing that the premises were in a reasonably safe condition, but the measure of his duty was reasonable prudence and care. (Griffen v. Manice, 166 N.Y. 188. ) The open door leading into the elevator permitted the intestate, without hindrance, to enter the elevator, and was an indication that the elevator was there present and could be entered. The janitor standing within it did not operate as a bar or obstruction to a person desiring to enter. The defendant, through his servant, the janitor, knew that the door was open and that the intestate could pass between the janitor and the right side of the door. He knew to what extent, if any, the open door would induce and the position of the janitor would, within reasonable anticipation or prescience, warn or interfere with a person intending to enter the elevator. The evidence does not disclose any ground for a belief on the part of the janitor that nobody *Page 310 would desire to take the elevator during the time he maintained his position. The janitor knew the existing conditions as to the degree of light within the hall and as to the exact location of the elevator and of the boy who operated it. The knowledge we have spoken of is not inconsistent or irreconcilable with a natural apprehension on the part of the janitor that somebody might pass through the door into the shaft, and it was for the jury to determine under a proper submission of all the evidence with proper instructions whether or not the janitor, within reasonable thoughtfulness in regard to the safety of a person who intended to take the elevator, should have apprehended that a person might in the exercise of due care pass through the door.
The plaintiff was entitled to go to the jury upon the issue of the freedom of the intestate from contributory negligence. Under the record as presented to us it is immaterial that under the Code of Civil Procedure (Section 841b) the burden of proving the intestate guilty of contributory negligence was on the defendant. We have concluded that the question of the defendant's negligence was, upon the entire evidence, for the jury; therefore, the remaining question is whether or not the entire evidence proved that the intestate was guilty, as a matter of law, of contributory negligence. The fact that there was no direct proof of the acts of the intestate immediately preceding the stepping into the shaft does not render impossible the finding that he was free from contributory negligence. It has become the established law of this state that in an action to recover damages for a death negligently caused, the relevant conditions and circumstances surrounding and relating to the occurrence may be submitted to the jury, in the absence of such direct proof, in order that the jury may determine the inferences, if any, which they create. (Sackheim v. Pigueron, 215 N.Y. 62.)
If the intestate did not act with reasonable and ordinary *Page 311 care, attention and prudence he was guilty of negligence. The plaintiff cannot recover on account of his death in case the injuries causing it resulted in whole or in part by his imprudence or inattention; and although the facts are not in dispute, if they reasonably permit opposing conclusions by fair-minded and honest men as to whether or not the injuries were contributed to by the carelessness or imprudence of the intestate, the question is for the jury. The facts that the janitor and his position and attitude were obvious to the intestate, and that the boy who ran the elevator was not visible in the hall had their importance, but the former was not inconsistent with the presence of the elevator at the level of the floor of the hall, because the janitor might have been thus placed in working at the inside of the elevator itself and neither fact clearly indicated that the open door did not lead into the elevator. Whether or not a person, situated as was the intestate, using attention and care ordinary under the circumstances and conditions would have seen the floor of the elevator five feet and nine inches above that of the hall, reasonably permits opposing answers and cannot be determined as a matter of law. The verdict of a jury, based upon a consideration of all the evidence, facts and inferences, can alone establish the negligence or freedom from negligence of the intestate.
The judgment should be reversed and a new trial granted, with costs to abide the event.
WILLARD BARTLETT, Ch. J., HISCOCK, CUDDEBACK, HOGAN, CARDOZO and POUND, JJ., concur.
Judgment reversed, etc. *Page 312