This is an action brought against the owner of a building for causing the death of the plaintiff's intestate in an elevator in which the deceased was being carried to his place of employment. Negligent construction and negligent management of the elevator are alleged. The plaintiff had a verdict against a request by the defendant that one be directed for him, the judgment was affirmed by the Court of Appeals, 37 App. D.C. 185, and the defendant brought the case here.
The elevator car did not quite fill the well, or shaft, and the bottom of the floor that it was approaching projected at right angles into the well about three and one-half inches. The car was equipped with a collapsible door,
The plaintiff in error argued at some length that there was no negligence, because the fall of the deceased was something wholly out of the ordinary course and not to be foreseen; or that, if there was negligence in any sense, it was not the proximate cause of the death but merely a passive condition made harmful by the fall. Neither argument can be maintained. It is true that it was not to be anticipated specifically that a man should drop from internal causes into the open door of the car. But the possibility and the danger that in some way one in the car should get some part of his person outside the car while it was in motion was obvious and was shown to have been anticipated by the door being there. In some circumstances at least it was a danger that ought to be and was guarded against. It is said that the danger was manifest only when the car was crowded, and that the door was needed only for that. If the duty to have the car shut on all sides had been created with reference only to conditions different in kind from those of the accident it may be that the plaintiff could not avail himself of a requirement imposed alio intuitu. Eugene F. Moran, 212 U.S. 466, 476. But the accident was similar in kind to those against which the door was provided, and we are not prepared to say, contrary to the finding of the jury, that
If there was negligence it very properly could be found to have been the proximate cause of the death. See Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U.S. 469. Even if it were true that the neglect was merely a passive omission, the deceased was invited into the elevator and the principle of the trap cases would apply. Corby v. Hill, 4 C.B. (N.S.) 556, 563. Sweeney v. Old Colony & Newport R.R. Co., 10 Allen, 368, 374. But that is not the case. The defendant is sued for having crushed the head of the deceased by forces that he put in motion. He replies that it would not have happened but for the unforeseen fall of the deceased without the defendant's fault, and to this the plaintiff rejoins and the jury has found that the defendant was bound to take the easy precaution which he had provided against any and all ways by which a passenger's body could get outside the car while it was going up. Hayes v. Michigan Central R.R. Co., 111 U.S. 228, 241. Choctaw, Oklahoma & Gulf R.R. Co. v. Holloway, 191 U.S. 334, 339. The whole question comes down to whether we are prepared to say as matter of law against the finding of the jury that, in an elevator constructed as this was with a special source of danger in the shaft outside the car, to require the defendant to guard the door space in transitu, at his peril, is too strict a rule. We cannot go so far. McDonald v. Toledo Consol. S. Ry. Co., 74 Fed. Rep. 104, 109.
There was perhaps evidence sufficient to warrant a finding that there was negligence in not stopping the car