Barry v. New York Biscuit Co.

Barker, J. In our opinion a verdict should have been ordered for the defendant upon the ground that, even if the plaintiff did not in fact appreciate the danger of using the elevator in the condition in which it was and located and loaded as it was at the time of the accident, the danger was so obvious that he must be held to have been negligent in incurring the risk or to have known and assumed it. The danger was that the jerking of the elevator, which he knew, would cause loose boxes placed by himself upon the elevator floor in piles six feet or more high, to be so moved and shaken in the ascent of the elevator as to be caught under the projecting beam the place of which he also knew. The plaintiff was twenty-three years of age. He had run the elevator many times a day for some sixty working days before the time of the accident. The jerking and shifting of the elevator was not new to him or unexpected, and its tendency to shift the position of the boxes so as to place them where they would be caught by the beam was so obvious that he should have appreciated it, and if he did not in fact both appreciate it and use means to prevent such an occurrence he was not in the exercise of ordinary care. If his own testimony was true he carelessly failed to appreciate the risk, and this carelessness caused him to so place the boxes that it was obvious that they were in danger of being so moved by the jerking of the elevator as to be caught under the beam, and to take no other means to keep them in a safe position was negligence on his part. If he did appreciate the risk there is no question but that he assumed it. In the opinion of a majority of the court there should be judgment for the defendant in accordance with the agreement made at the trial in the Superior Court. ¡Exceptions sustained; judgment for the defendant in accordance with the agreement.