Whitehouse v. Single

Hubbs, P. J.

At the close of the plaintiff’s case the learned Municipal Court justice dismissed the plaintiff’s complaint upon the ground that the evidence established contributory negligence as a matter of law. We think that was error.

Under the facts disclosed by the plaintiff’s evidence, a question of fact was presented both as to the defendant’s negligence and the plaintiff’s contributory negligence. The plaintiff was the driver of a truck. He had called at the defendant’s place of business on previous occasions for packages, which had been brought down from the upper floors of the building on the elevator in question. On those occasions he had gone up and down on the elevator which had been operated by one of the defendant’s employees. He was, therefore, familiar with the situation as disclosed on those occasions. He testified that on those occasions the elevator had always been at the ground floor as he approached it. On the day in question it was dark and rainy. The elevator was located fifty feet from the nearest window, which was at the front of the store. It was inclosed on three sides and in front there was a gate which closed automatically when the elevator went up but which had to be raised by hand when one desired to enter it. Before the gate could be raised the employee in charge had to unlock it. At the time in question the plaintiff approached the elevator in the company of one of the defendant’s employees, who walked ahead of the plaintiff. The plaintiff testified that the part of the store near the elevator was dark; that there was no artificial light in the elevator shaft or near it; that the defendant’s employee walked up to the gate, unlocked it and stepped ahead and reached for the cable; that he supposed the elevator was there level with the floor; and that he stepped into the open shaft and was injured. It developed that the elevator was at an upper floor and that the employee stepped under the gate for the purpose of operating the cable to lower the elevator.

Under the conditions described by the plaintiff, which we must construe most favorably to the plaintiff upon this appeal from a *206 nonsuit, there was a clear question of fact for the jury. The principle which precludes a recovery where one heedlessly walks into an open shaft where the location is properly lighted has no application, as the plaintiff testified that the store was dark and that there were no artificial fights as required by section 257 of the Labor Law of 1921. Neither does the principle which forbids a recovery where one Walks without an invitation or assurance of safety into a dark place and is injured have any application. The plaintiff urges that he relied upon the man in charge, and when he saw him step in and reach for the cable he assumed the elevator was there, as it had always been on other occasions. Under such circumstances he was not chargeable with contributory negligence as a matter of law. (Christensen v. Hannon, 230 N. Y. 205 ; Morman v. Rochester Machine Screw Co., 53. App. Div. 497.)

The judgment of the County and Municipal Courts should be reversed and a new trial granted, with costs to the appellant to abide the event.

Davis, Sears, Crouch and Taylor, JJ., concur.

Judgment of County Court and of Municipal Court reversed on' the law and a new trial granted in the Municipal Court, with costs in all courts to the appellant to abide the event. New trial to be had on the twelfth day of July at ten a. m.