Cohn v. Ansonia Realty Co.

162 A.D. 791, 148 N.Y.S. 39, 1914 N.Y. App. Div. LEXIS 6857

Opinions

Scott, J.:

Plaintiff, a young married woman with three children, lived in an apartment on the ground floor of a house owned by defendant. The elevator shaft was directly opposite the door to her apartment and distant therefrom only three or four feet. She left her apartment with her children, who ran ahead into the elevator car, while plaintiff turned to lock her door. When she faced about again she saw the car ascending with her two children in it and no operator, and the door opening from the hallway into the elevator shaft as well as the door of the car open. She was so overcome by fright that she fainted and fell into the elevator shaft. The elevator operator, employed by defendant, admittedly had left the elevator unattended while he had gone for some purpose to a rear room. He conceded on the stand that he had not closed the door leading from the hall into the shaft; that he never did so except when the elevator was in motion, and-that he had never been instructed to do so. He said that he had closed the door of the car, but that it did not catch and was very easily opened and shut. The jury was quite justified in inferring that he had not closed the door at all, or, at least, had only partially closed it. Under the circumstances, even if the door of the car was closed, it was not latched, and a prudent person might have anticipated that some one would enter the car while the, attendant was away. To leave the car in that condition was certainly careless. It does not appear what caused the car to start. It may be, as defendant insists must have been the case, that the children started it. But even so, the opportunity to start it resulted from the carelessness of the operator in leaving the car in such a condition that any unauthorized person could enter it and start it in motion. In my opinion the jury was quite justified in convicting the defendant of negligence. (Tousey v. Roberts, 114 N. Y. 312; Wilcox v. City of Rochester, 190 id. 137; Jolliffe v. Miller, 126 App. Div. 763; affd., 196 N. Y. 504.)

But it is urged that it was plaintiff’s fright which was the proximate cause of her injuries, and that defendant is not responsible in damages for the consequence of a fright caused by its negligence. For fright alone, unconnected with physical'injury, it is true that no recovery can be had, but when the fright results in an actual physical injury a different rule prevails. (Jones v. Brooklyn Heights R. R. Co., 23 App. Div. 141; Wood v. N. Y. Central & H. R. R. R. Co., 83 id. 604; affd., 179 N. Y. 557.) It is also said that even if it was negligent to leave the car in the condition in which it was left, still the operator could not reasonably have foreseen that such an accident as this would occur. It was not necessary, however, that the operator should have been able to anticipate that this particular accident would happen. He was bound to know, however, that if he left the car so circumstanced that any person might enter it and start it up, it might happen that some one would do so, and if that did happen the entrances to the shaft from the hall would inevitably have been left wide open, for he confessedly had not closed the door leading from the hall into the shaft. In my opinion the judgment and order appealed from should be affirmed, with costs.

Ingraham, P. J., Clarice and Hotchkiss, JJ., concurred; McLaughlin, J., dissented.