Kaplan v. J. C. Lyons Building & Operating Co.

Hendrick, J. The weight of the evidence does not sustain the plaintiff’s contention. He is uncorroborated, and describes a condition of affairs that is highly improbable, if not impossible. It is not contended that the elevator and [316] machinery were not in perfect order, so that the only negligence attempted to he shown was in the act of defendant’s servant, the elevator attendant. On that point the evidence of the defendant is positive that the elevator man was not in the building at the time; and it would require more than the impossible story of the plaintiff to overcome that testimony. Moreover, I do not think that the plaintiff’s freedom from contributory negligence was shown. He walked into the elevator while it stood there empty and without any one in control. He placed himself in a position of danger. The mere fact that the door was open was not an invitation to get into' the elevator when no one was in charge of it. Green v. Urban Contracting & Heating Co., 106 App. Div. 460. Giegerich and Ford, JJ., concur. Judgment and order reversed and new trial ordered, with costs to-appellant to abide event.