The evidence shows that the elevator was in perfect running order and that it could not have moved from the position where the operator left it unless some one had pulled the rope persistently and- with considerable force, thus making the connection with the electric motor. The testimony is no less conclusive that *18none of those in the car had touched the rope, for the peddler testified that he did not, and he separated from it the others who he says were facing outward. By elimination, thérefore, of other-causes, the only reasonable conclusion is that the elevator was-set in motion by some one on another floor reaching into the shaft and pulling the rope. On the lower floor, as stated, there was provided a folding gate, and on the other floors there was either gates, or doors, how constructed or how fastened does not appear. Neither does it appear whether or not one could reach into the shaft and pull the rope, or whether if the gates or doors were closed, they could be readily opened from without. One of two inferences, however, may be drawn, either that the rope, owing to the construction of the shaft, could be reached and pulled on any floor or else that the operator had left the gates or doors open when he brought the ele-, vator car down. In either case there was danger of some one on another floor starting the car, and, therefore, the duty devolved on him of remaining in the car and near the rope until his passengers were safely landed. Imposing such a duty under the circumstances-is but. the equivalent of saying that he was bound to exercise reasonable care.
It is conceded that the elevator man deliberately left the car before the others were safely out of it; and thus there was a question for the jury as to whether his conduct in so doing was negli- • gent or not. . .
That the accident could have been averted had he stayed at his post or even near the elevator is evident, for though he was ten or twelve feet from it and walking in the opposite direction when the car started upward, he was able to return and stop the car when it reached- the floor above, too late, however, to prevent the injury to plaintiff’s intestate. His negligence, therefore, in thus leaving the car and its occupants before they had opportunity to safely alight, in view of his knowledge or means of knowing that such an accident could occur and was to be guarded against, was a failure to observe that reasonable care which, as stated in the recent case of Griffen v. Manice (166 N. Y. 188), is required in. the maintenance and operation of an elevator. Therein the manner and cause of the accident were different, but the rule enunciated by the court is. applicable. It was said: “ The deceased was present by. the implied *19invitation of the defendant extended to him (her) and all others who might have lawful business on the premises to use the elevator as a means of proceeding from one story to another. The defendant, therefore, owed the plaintiff the duty of using at least reasonable care in seeing that the premises were safe. * * * That no such accident could ordinarily have occurred had the elevator machinery been * * * properly operated seems to me very plain. The court was, therefore, justified in permitting the jury to infer negligence from the accident, construing, as I do, the term accident to include not only the injury but the attendant circumstances.”
The appellant insists, however, that the court erred in refusing to charge certain requests. The first error assigned was in declining to advise the jury of the proportions the husband, father and brother and mother would receive of any award. In refusing this we think no error was committed for the court had properly charged in the very language of the statute that the damages might be such sum as would be a fair compensation for the pecuniary injuries resulting to the persons for whose benefit the action was brought. It was the duty of the jury to fix this sum and in this they would receive no assistance by instructions Concerning the distribution provided by law.
Bor do we think the court erred in refusing to charge the further request “ that there having been no proof offered as to the condition and the circumstances of the next of kin,” they were justified “ in passing them over altogether in the consideration of damages.” That this request was faulty and was properly refused, a brief review of the authorities will show. What is required is some basis for an award of damages by proof of the condition and situation of the' deceased and of the next of kin. As said in Lockwood v. N. Y., L. E. & W. R. R. Co. (98 N. Y. 526): “ In but few cases arising under this act is the plaintiff able to show direct, specific pecuniary loss suffered by the next of kin from the death, and generally the basis for the allowance of damages has to be found in proof of the character, qualities, capacity and condition of the deceased, and in the- age, sex, circumstances and condition of the next of kin. The-proof may be unsatisfactory and the damages may be quite uncertain and contingent, yet the jurors in each case must take the elements thus furnished and make the best estimate of damages they *20can. There seems to he no other mode of administering the statute referred to, and protection against excessive damages must be found in the power of courts in some of the modes allowed by law to revise or set aside the verdicts of juries.”
In the case at bar we have given the sex, age, capacity and situation -of the deceased, and as to the next of kin, we have the age, business, occupation and condition of the husband and that the deceased left also a father and brother. There was, therefore, a basis for the award of damages, and the sum of $4,000 was not, under such circumstances, excessive. Although the exact condition of the father and brother was not shown, it would have been error to have passed them over altogether in the estimate of damages.
Thus, in the case of Kelly v. Twenty-third Street Railway Co. (14 Daly, 418), where it appeared that the only next of kin of the deceased were a brother and sister in Ireland and three- nephews in Hew York city, where he carried on the business of junk dealer, and the testimony did not show that he in any way supported these relatives, nor what he earned, nor what the value of his life was to them, it was held that a verdict of $1,000 should not be set aside as excessive. As said by Mr. Justice Finch in Houghkirk v. President, etc., D.& H. C. Co. (92 N. Y. 219): “ The statute implies from the death of the person negligently killed damages sustained by the next of kin. (Quin v. Moore, 15 N. Y. 432.) Recognizing the generally prospective and indefinite character of those damages and the impossibility of a basis for accurate estimate, it allows a jury to give what they shall deem a just compensation * * * They are' required to judge and not merely to guess, and, therefore, such basis for their judgment as the facts naturally capable of proof can give should always be present and is rarely, if ever, absent.. The pecuniary loss in any such case may be composed of very different elements. It may consist of special damages, that is, of an actual, definite loss, capable -of proof and of measurement with approximate accuracy; and also of prospective and general damages, incapable of precise and accurate estimate because of the contingencies of the unknown future.” The learned judge then illustrated special damages by the element of funeral expenses, and continued, “ to permit the jury to guess at their amount as an element of the total loss, would be to substitute conjecture for proof where *21proof was possible and a proper basis of judgment attainable. But the value of a human life is a different matter. The damages to the next of kin in that respect are necessarily indefinite, prospective and contingent. They cannot be proved with even an approach to accuracy, and yet they are to be estimated and awarded, for the statute has so commanded. * * * The age and sex, the general health and intelligence of the person' killed, the situation and condition of the survivors and their relation to the deceased; these elements furnish some basis for judgment. That it is slender and inadequate is true * * * but it is all that is possible and while that should be given * * * more cannot be required. Upon that basis and from such proof, the jury must judge.”
The request to charge in the form made, in view of the testimony given, was bad and, therefore, properly refused.
We think that the judgment and order appealed from should accordingly be affirmed with costs.
Patterson and Laughlin, JJ., concurred; Van Brunt, P. J., dissented.
Judgment and order affirmed, with costs.