Jacko v. American Tube & Stamping Co.

Per Curiam. The court granted the nonsuit, which it afterward refused to set aside, upon the ground that the plaintiff had failed to offer prima facie proof of either negligence on the part of the defendant or the absence of contributory negligence on the part of the plaintiff. Assuming that there was evidence which the plaintiff was entitled to have submitted to the jury in support of the allegation that the defendant was negligent in not providing a call-bell or other suitable device for summoning the elevator-man, there was such lack of evidence of the plaintiff’s exercise of due ' care that prima facie proof upon that aspect of the case was wanting. *526 The plaintiff must have been fully aware of the condi-. tions which surrounded the elevator with which he had become familiar by its daily use for substantially two months. The danger inherent in those conditions, whatever they were, and the particular danger to which he was exposed when he was injured, were perfectly obvious. As a person of ordinary intelligence he must have known and comprehended them. It was his duty, in the exercise of ordinary care, to conduct himself accordingly, and to make a reasonable use of his senses in view of the danger. He, as he says, thrust his head into the path of the ascending or descending elevator to call its operator, upon the assumption that it was below him at the ground floor. He was not entitled to put himself in a place of danger upon such an assumption. He had no foundation for it other than that the customary station of the elevator when not' in use was there. He knew that its position was not a stationary one, and that its use,, which was more than ■ casual, carried it to the other floors of the building. He took not the slightest precaution to see where it was before choosing, between the two available methods of calling it, the one which had the elements of danger in it. A glance of the eye would have told him that it was above him. The floor over his head was the highest point to which it could go. Its path was entirely exposed to view. If it was at the upper story or descending, that fact would be revealed by the most casual look. The absence of the lifting-cable from the shaft would also have disclosed that the elevator was above and not below. A look down the shaft before he reached the gate would have revealed that it was not at the ground floor, for he admitted that, standing a few feet in front of the gate, one could see the elevator platform when it was there. If the dim light prevented him from seeing clearly . *527 these or any of these indications of the elevator’s position, that would furnish him no excuse for not looking and trying to see, and he does not say that he did anything of the sort. As far as appears by the testimony he did not make the slightest effort to observe any of the unmistakable indications of the elevator’s position, or to take the least precaution before placing himself in a place of known danger. For aught that appears he acted heedlessly, or upon an assumption, if he took any thought at all, which, under the circumstances, he had no reasonable excuse for making and acting upon. There is no error.