Humphreys v. Portsmouth Trust & Guarantee Co.

Loring, J. We are of opinion that judgment should be entered on the verdict. 1. The evidence warranted a finding that the plaintiff was in the exercise of due care. It is ordinarily true that a person who walks into an elevator well is guilty of contributory negligence. Taylor v. Carew Manuf. Co. 143 Mass. 470. Patterson v. Hemenway, 148 Mass. 94. Keenan v. Edison Electric Illuminating Co. 159 Mass. 379. Ballou v. Collamore, 160 Mass. 246. McCarvell v. Sawyer, 173 Mass. 540. It is also true that a person who goes forward in the dark in a place with which he is not acquainted is not in the exercise of due care. Campbell v. Abbott, 176 Mass. 246. Daley v. Kinsman, 182 Mass. 306. But in the case at bar the plaintiff under the circumstances might well have mistaken the elevator door, which was open, for the door by which he entered the day before, which was shut, without being guilty of negligence. The accident happened at five to seven minutes after seven o’clock in the morning of January 4, and there was evidence that the morning was damp, misty, cloudy and dark. There was also evidence that the alley way on which the two doors opened was not more than ten feet and one half wide, and was hemmed in on each side by brick buildings of the ordinary color, six stories in height. That it was so dark there at the time that a person in the alley way could see only as in the dusk. It appeared that the two doors were similar in appearance, the door of the elevator being • five feet beyond the door which the plaintiff should have taken, and that while the door he should have taken was closed the shutters of the elevator were open and “ lay back against the wall shining all nice and bright.” We are of opinion that under the circumstances of this case the plaintiff might be found to have gone forward in the dark without being guilty of negligence. The jury were warranted in finding it to be so dark beyond the entrance to the elevator that the plaintiff could not see whether there was a hole or floor in front of him. There was also evidence that the landing beyond the proper entrance was equally dark when the plaintiff used it the day before. Added to this there was a door on the left of each entrance which might be found to have further misled the plaintiff. The case is very like Gordon v. Cummings, 152 Mass. 513. See also Parker v. Barnard, 135 Mass. 116. [425] 2. The testimony of the plaintiff’s employer warranted a finding that the elevator was within the defendant’s control. He. testified “ that during his occupation the defendant took care of the elevators.” Judgment on the verdict.