Kaminsky v. Arthur Rubloff & Co.

• Decision Date: 17 June 1966
• Docket Number: Gen. No. 50640
• Citation: 72 Ill.App.2d 68,218 N.E.2d 860
• Parties: J. David KAMINSKY, Plaintiff-Appellee, v. ARTHUR RUBLOFF & COMPANY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 860

218 N.E.2d 860

72 Ill.App.2d 68

J. David KAMINSKY, Plaintiff-Appellee, v. ARTHUR RUBLOFF & COMPANY, Defendant-Appellant.

Gen. No. 50640.

Appellate Court of Illinois, First District, Fourth Division.

June 17, 1966.

Berchem, Schwantes & Thuma, Chicago, Donald N. Berchem, Richard Owen Young, Michael A. Dunn, James O. Latturner, Chicago, of counsel, for appellant.

Jacobs & McKenna, Chicago, Lloyd E. Williams, Jr., Barry L. Kroll, Chicago, of counsel, for appellee.

DRUCKER, Presiding Justice.

Plaintiff brought an action based upon negligence to recover damages for injuries which were sustained by him when he unlocked the first floor door to an elevator shaft, stepped in while the elevator was at another floor, and fell to the bottom of the shaft. A judgment in favor of the plaintiff for $15,000 was entered upon a verdict returned by the jury after which defendant filed motions for judgment notwithstanding the verdict and in the alternative for a new trial, both of which were denied. Defendant appeals from the verdict and judgment and from the denial of those motions.

On the day of the accident (December 23, 1953) plaintiff was employed as manager of the Martha-Maid Manufacturing Company, a tenant of the sixth floor of a building which was managed by defendant, located at 367 West Adams Street. Plaintiff's employer and another tenant of the building had permission to use the passenger elevators after 6:00 P.M., when the elevator cars were closed down and the elevator operators off duty. After 6:00 P.M. the elevator doors could be opened only by inserting a 'key' through a hole therein, and the elevator could be at any floor when the door was opened in that manner. Shortly after 6:00 p.M. on the aforesaid date plaintiff returned to the building of his employer following an office Christmas party to complete some work, first entering the lobby which was described as being approximately thirty feet in length and ten feet wide at the front door but narrowing to six feet in width about thirteen feet from the front door. Two passenger elevators are at the rear of the lobby. Plaintiff obtained the 'key' and unlocked the door to one of the elevators without difficulty. He then opened the door but did not look through a window therein to ascertain whether the elevator was at the first floor, and simultancously stepped in, but the elevator was at a higher floor and plaintiff fell to the bottom of the shaft.

Plaintiff testified that the normal practice in the building after 6:00 P.M. was to leave the elevator on the ground floor with the door closed and the light turned off (the light switch was inside the elevator approximately thirty inches from the edge of the elevator door); that on prior occasions when the elevator was in this position the indicator light above the elevator would be unlit; that he had used the elevator five times per week after 6:00 P.M. since 1949; and that whenever he opened the elevator door in the aforesaid manner he always found the elevator to be at the lobby floor. The plaintiff further stated that on the night of the accident the elevator indicator light was unlit as usual and that he relied thereupon for assurance that the elevator was on the ground floor.

The testimony is in conflict as to what type of indicator light was used and whether it would be lit when the elevator was on the ground floor.

The testimony was also in conflict as to the type of night light burning in the lobby. Plaintiff testified that:

When I walked in there (the lobby), there was one light on in the lobby. That was at the front of the lobby, about twelve feet in. * * * The light was in the ceiling, about fifteen feet high.

It was a fluorescent light. It was rather dim.

Paul McClosky, who had been employed by the defendant at the building in question for fifteen years, testified that:

As to what lights were lit after the building was closed, the 8-foot fluorescent lights directly in front of both elevators were lit at all times during the night. After six, there was no other light in the lobby except the 8-foot fluorescent lights. The ceiling was ten feet high. The * * * light was about five feet from the elevator doors, I imagine.

George Jones, who had worked for the defendant for eighteen years, stated that:

Yes, there was such a thing as a night light. In the lobby, that consisted of two fluorescent light tubes. They were located up in the ceiling, in front of the elevators. The lights were something like eleven feet from the floor. * * *

In addition, Louis Capron testified and stated that he was employed by the defendant until 1964; that at the time of the accident he managed the building in question for the defendant; and that:

As to what you would see if you looked into this elevator shaft through this window when the light in the elevator was out, you would see nothing.

Unless you have very strong eyes, it would be black.

On recross-examination the witness stated that:

I was not speaking about with the door open. If you open the door, it would be quite a different question. Then you get a reflection.

The witness did not state that, as a result of the reflection, the plaintiff would have been able to ascertain whether the elevator was at the lobby floor. Nor was any other evidence adduced to that effect or to contradict the testimony of Capron that if one looked through the window in the elevator door he would only see darkness.

Defendant first contends that the court erred in denying its motion for judgment notwithstanding the verdict since the evidence shows that the plaintiff was guilty of contributory negligence as a matter of law. In Jolliffe v. Miller, 126 App.Div. 763, 111 N.Y.S. 406, ¹ the plaintiff was injured when he fell into the elevator shaft after walking through the open elevator door. The evidence in that case revealed that the plaintiff had been a tenant in the defendant's building for two years; that as plaintiff approached the elevator on the first floor the door thereto was open and the operator was standing nearby; that plaintiff had never seen the door open if the elevator was not there and that the door was always open when the operator was standing nearby. The plaintiff in that case admitted not only that he did not look to ascertain whether the elevator was at the first floor but also 'that if the car had been there at the time he was hurt and he had looked before he stepped in, with the condition of light the way it was, he would have been able to see the car * * *.' Relying upon his past experience, plaintiff assumed that the elevator was at the first floor and walked straight in but, since the elevator was at a higher floor, he fell into the shaft and was injured. The court held that the question of whether plaintiff was contributorily negligent was for the jury, stating that the open door and the elevator operator standing nearby together constituted such an invitation to enter that plaintiff was lulled into security.

In Tippecanoe Loan & Trust Co. v. Jester, 180 Ind. 357, 101 N.E. 915, L.R.A.1915E, 721, the defendant was negligent in failing to repair a catch which would hold the first floor elevator door closed when the elevator was at another floor. It was the custom, of which plaintiff was aware, that the door was closed when the elevator was at another floor. The hallway which led to the elevator was 'somewhat dark' and plaintiff, seeing the elevator door to be open, did not look to see if the elevator was at the first floor but relied upon the aforesaid custom and stepped in and fell to the bottom of the shaft. The court reversed a judgment for the plaintiff and remanded the cause for a new trial because of various erroneous instructions which were given to the jury but also stated that since plaintiff relied upon the aforesaid custom in entering the elevator it was a question for the jury as to whether he was guilty of contributory negligence.

In Hull v. Bishop-Stoddard Cafeteria, 238 Iowa 650, 26 N.W.2d 429, the shaft of an antiquated elevator was guarded only by a gate which had the appearance of slats of wood on which was posted a sign reading: 'This gate must not be left open.' Plaintiff was collecting the garbage and, after talking to someone, turned around and noticed that the gate was raised, simultaneously stepped in and fell to the bottom of the shaft. There was no evidence that the area in front of the elevator was well lighted but there was evidence that the floor of the elevator was dark and dirty. While the evidence also revealed that the plaintiff knew that the gate could be open when the elevator was at another floor, the court pointed out that the plaintiff testified that in the thirty-seven months he had used the elevator he had never known the gate to be open when the elevator was not at that floor. The court, stating that it was quite immaterial that other persons had a contrary experience, held that the question of contributory negligence was for the jury to determine.

The conclusion to be drawn from the aforesaid cases is that if the evidence showed that the plaintiffs therein, relying upon custom and past experience, had reasonable grounds to believe that the elevator was at the floor of their proposed entry, and they did not look to ascertain whether the elevator was actually there, the question as to whether they were guilty of contributory negligence was for the jury to resolve. A motion for judgment notwithstanding the verdict presents the single question whether there is in the record any evidence which, standing alone and taken with all its intendments most favorable to the party resisting the motion, tends to support the verdict of the jury. In the instant case defendant adduced no evidence that the lighting in the hallway was sufficient to enable the plaintiff to have determined whether the elevator was at the first floor. Moreover, there is evidence from which the jury could have concluded that plaintiff relied...