(dissenting):
The plaintiff, with her husband and three children, occupied an apartment on the ground floor of defendant’s apartment house, in which it, for the use of the tenants, maintained an electric elevator. The door to the apartment occupied by plaintiff was located some three or four feet from the entrance to the elevator. On the 19th of December, 1910, the plaintiff left her apartment with two of her children, aged three and four years respectively, for the purpose of going to the third floor. While she was locking the door to her apartment the two children entered the elevator and as she turned around she saw the car ascending, with the children, without any operator. Thereupon she became frightened, fainted, and fell into the opening caused by the removal of the car, and sustained the injuries of which she complains. She had a verdict for a' substantial amount, and from the judgment entered thereon and an order denying a motion for a new trial defendant appeals.
I am unable to agree with the other members of the court that the judgment should be affirmed. The proximate cause of the plaintiff’s injuries was due not to the negligence of the defendant in leaving the door or gate open—if it were negli*794gent in this respect — but to her fainting when she saw her two children going up in the car. In determining what is proximate cause, the true rule is that the injury must be the natural and probable consequence of the negligence; such a consequence as, under the surrounding circumstances of the case, might and ought to have been seen by the wrongdoer as likely to flow from his act. (Mitchell v. Rochester Railway Co., 151 N. Y. 107; Hack v. Dady, 134 App. Div. 253; Hutchinson v. Stern, 115 id. 791; Lehman v. Brooklyn City R. R. Co., 47 Hun, 355.) Defendant owed plaintiff no duty to protect her from fright or from fainting by reason of it. The defendant was not bound to anticipate that the plaintiff, upon seeing her children going up in the car without an operator, would faint, and by reason thereof fall and sustain the injuries which she did.
There is another reason which seems to me to be fatal to the judgment. There is no evidence in the record which shows what caused the car to start, nor does it appear that the elevator was in any way defective or that it started of its own accord. The mere fact that the elevator started is not enough on which to predicate a liability.
Upon both grounds, therefore, I think the judgment should be reversed and a new trial ordered.
Judgment and order affirmed, with costs.