#### Aida Cohn, Respondent, *v.*Ansonia Realty Company, Appellant.

First Department,

June 5, 1914.

Negligence — injury by fall down elevator shaft — failure of operator to close door during temporary absence — proof justifying recovery — injuries caused by fright — anticipation of possible accident.

Action to recover damages for personal injury. The plaintiff, a woman with three children, lived in an apartment house owned by the defendant. An elevator shaft was directly opposite the door of her apartment. While the plaintiff was locking her door her children entered the elevator car, and when she turned and saw the ear ascending without the operator in attendance she fainted and fell into the elevator shaft. The operator testified that before leaving the car he had closed the door leading to it, but that it did not catch and was very easily opened and shut; but he admitted that he had left open the door giving entrance to the shaft. On all the evidence, *held,*that a judgment for the plaintiff should be affirmed.

Under the circumstances the defendant cannot escape liability upon the ground that the plaintiff’s fright was the proximate cause of her injuries, for while there can be no recovery for fright alone, there may be a recovery where fright results in actual physical injury.

Nor can the defendant escape liability upon the theory that the operator of the elevator could not reasonably have foreseen the accident, as he admitted that he had not closed the door leading to the shaft.

McLaughlin, J., dissented, with opinion.

Appeal by the defendant, Ansonia Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of October, 1913, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 6th day of November, 1913, denying defendant’s motion for a new trial made upon the minutes.

*George J. McDonnell,*for the appellant.

*Wales F. Severance,*for the respondent.

Scott, J.:

Plaintiff, a young married woman with three children, lived in an apartment on the ground floor of a house owned *792by 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 pre*793vails. *(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.

McLaughlin, J.

(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.