Cutler v. Kolb Bakery Co.

Per Curiam, Plaintiff, sued to recover damages for injuries sustained as the result of falling through an open elevator shaft on the premises of defendant. The judgment of the lower court, in refusing to take off a nonsuit, is affirmed on the following extract from the opinion of the learned court below: “Plaintiff on his own testimony admitted that he was standing seven feet away from the opening into the elevator; that he had his back to the elevator; that he had been engaged for a few minutes previous in helping to load his truck with flour. He then says that he stepped backward those seven feet to the elevator and fell down the unguarded shaft, the elevator having been moved meanwhile by somebody unknown. The plaintiff further testified that he knew that the gates were not there, or that if they were there that they did not work, because he said he had been up there some ten or twelve times before over a period of about [61] two months before this accident happened, and therefore he knew the condition of the elevator, and knew therefore that if the elevator was moved there would be no gates there to protect a person. With that knowledge, he stepped backward from his position in the truck to the elevator shaft without turning his head, either before he started or while he was backing, or immediately before passing over from the solid floor into the area covered by the elevator. He also says it was a bright May day, a sunny day, and that while it was not as light within the building, of course, as it was outside, there was enough light there for him to have seen had he' looked. He frankly says that ‘he could have seen had he looked and that he did not look.’ ” The judgment is affirmed.