Patterson v. Hemenway

Knowlton, J. The burden of proof was upon the plaintiff to show that he was in the exercise of due care at the time of the accident for which he seeks to recover. He was attempting to use an elevator in going to and from the premises of the Kimball Manufacturing Company, which were in the upper story of a building on Sudbury Street in Boston. The entrance to the elevator at the lower story was from a*- passageway, having a gate which was regularly kept locked, except during the hours from morning until sunset of each day. The mode of construction of the elevator, as well as the sign upon it, plainly indicated that it was not designed for use by passengers. The plaintiff, when going upon errands to the rooms of the Kimball Manufacturing Company, had repeatedly used it without invitation, and on two occasions persons connected with that company had told him not to go upon it. It is difficult to see what evidence there was that he was in the exercise of proper care in attempting to get upon it at all, on the day of the accident. But, even if he might have used it without thereby being deemed guilty of negligence, it was his duty while using it to take reasonable precautions for his safety. And it is undisputed that he had never found any one at the elevator who operated it, that there was nobody there when he went upon it on the day of the accident, that he went into the rooms of the Kimball Manufacturing Company and closed the door leading from the elevator well and left the elevator, and that he knew that any one wanting to use it had only to take hold of the rope which operated it, and pull it down to either of the floors below. After transacting his business, which took five minutes, he went in a great hurry to the door that shut off the elevator well, opened it, heard some one speak to him, turned around quickly towards the person speaking, and, without look [98] ing at the elevator well, stepped out into it. The elevator in the mean time had been lowered, as he knew it might be, and he fell and was injured. His act, as he described it, was one which the general judgment of common men would immediately condemn as negligent, and there was no phase or element of it, nor any circumstance attending it, which indicated the use by him of ordinary care. Messenger v. Dennie, 137 Mass. 197; S. C. 141 Mass. 335. Taylor v. Carew Manuf. Co. 140 Mass. 150; S. C. 143 Mass. 470. Upon this ground, the jury were rightly directed to return a verdict for the defendants, and it is unnecessary to consider the questions arising upon the allegations that the defendants were negligent. The exceptions saved by the plaintiff in relation to the introduction of testimony are also immaterial. None of the evidence to which they relate pertains to the point upon which our decision rests. Exceptions overruled.