Bigby v. United States

Bigby, the plaintiff in error, claimed in his petition to have been damaged to the extent of $10,000 on account of certain personal injuries received by him while entering an elevator placed by the United States in its courthouse and postoffice building in the city of Brooklyn, and asked judgment for that sum against the government.

The petition was demurred to upon three grounds, namely, that the court had no jurisdiction of the person of the defendant, or of the subject of the action, and did not state facts sufficient to constitute a cause of action against the United States.

The demurrer was sustained by the circuit court on each of the grounds specified, and, so far as it was sustained upon the ground that the petition did not state a cause of action, it was sustained because the action was not authorized by the act of Congress known as the Tucker act, approved March 3d, 1887, chap. 359, and entitled 'An Act to Provide for the Bringing of Suits against the Government of the United States.' 24 Stat. at L. 505 (U.S.C.omp. Stat. 1901, p. 752). The action was accordingly dismissed.

The specific allegations of the petition are-

That the United States is a corporation created by the Constitution, with its principal office in Washington, and, within the meaning of the New York Code of Civil Procedure, is a foreign corporation;

That on or about November 27th, 1899, the petitioner, while on his way to the office of the marshal of the United States for the eastern district of New York, and at the request of the United States and of its officers, employees, and duly authorized agents, each acting within the scope of his authority, entered into a passenger elevator in the United States courthouse and postoffice building in Brooklyn, which building and elevator was owned and controlled by the United States, and was designed and intended by it for the use of persons on their way to the office of its said marshal;

That the United States 'then and there entered into an implied contract' with the petitioner, 'wherein and whereby, for a sufficient valuable consideration, it agreed to carry your petitioner safely, to operate said elevator with due care, and to employ for the purposes of the operation of said elevator a competent and experienced person;'

That in 'violation of said contract, the United States failed to carry the petitioner safely, or to operate the elevator with due care, or to employ for the operation and to put in charge of such elevator a competent and experienced person, and violated its contract with the petitioner in other ways; and,

That in consequence of said failures, respectively, the petitioner, 'while entering the said elevator without negligence on his part was caused to fall and his foot, ankle, and leg were crushed between said elevator and the top of the entrance into the elevator shaft or a projection in the shaft of said elevator or in some other manner, and the back of your petitioner and other parts of the body of your petitioner were also consequently injured, and your petitioner consequently suffered a laceration of the ligaments of his ankle, and he consequently was caused much bodily and mental pain.'

The transcript contains a certificate from the circuit court to the effect that in said cause the jurisdiction of that court was in issue, and that the question was 'whether a person who is not, and has not been, an employee of the United States, can sue the United States, in the circuit court of the United States, in the district where he resides, to recover damages to the amount of $10,000, which damages were caused by personal injury received by said person through the negligence of an employee of the United States, while said person injured as aforesaid was being carried on an elevator in a public building owned and used by the United States as a postoffice and for other governmental uses and purposes, when said person entered said elevator for the purpose of visiting the office of the United States marshal of such district on official business.'

Mr. Roger Foster for plaintiff in error.

Assistant Attorney General Pradt for defendant in error.

Mr. Justice Harlan delivered the opinion of the court: