Garland v. Stetson Et Al‪.‬

DONAHUE, Justice. This is an action against the owners of a five-story commercial building, the first floor and basement of which had been let to one Kotzen a wholesale fruit and produce dealer, to recover damages for injuries received by the plaintiff in falling from the first floor to the bottom of the well of a freight elevator. The elevator also served the upper floors of the building but these at the time of the plaintiffs accident were unoccupied. The plaintiff had bought goods from Kotzen for many years and during the latters tenancy was accustomed to go to the premises in question several times a week to make purchases. On the day of the accident he went there for that purpose. He examined the goods in and about the front part of the store and having been told that Kotzen, whom he wished to see, was upstairs, he went to the elevator shaft which was located about twenty-five feet from the front of the store. He testified that although the sum was shining outside, it was very dark in the vicinity of the elevator shaft and no electric lights were there turned on. He noticed, however, that the elevator was there and that the gate at the elevator opening was tied up with a rope so that it could not drop down when the elevator car had left that floor. He stepped into the car and shouted for Kotzen. Receiving no reply he went back to the front of the store and resumed his examination of the merchandise there displayed. After a few moments he went again to the elevator shaft to shout to Kotzen. When in the vicinity of the opening he saw coming toward him in the narrow passageway in front of the elevator a man, not an employee of Kotzen, carrying a crate on his shoulder. He testified that without considering the gate and the fact that he had observed a few moments before that the gate was tied up or without looking to see if the elevator car was still there, in order to get out of the way of the man approaching he stepped to one side and through the elevator opening. The elevator was not there and he fell to the bottom of the shaft. The elevator opening was equipped with a gate originally designed to fall automatically and furnish a barrier to the elevator well when the elevator car was not at that floor. There was evidence warranting the finding that at the time of the letting to Kotzen and at the time of the accident, the elevator gate if not tied up would, because of the defective condition of the mechanism supporting it, come down when the car was stopped at that floor level thus barring entrance to or egress from the car. At the time of the letting and of the accident it was tied up and hence could not drop and provide a barrier to the elevator opening when the elevator car was not at that floor.