78 A.D. 513 | N.Y. App. Div. | 1903
The plaintiff seeks to recover damages for injuries sustained by him while engaged in fighting a fire in the defendant’s factory in Yonkers, the complaint alleging negligence on the part of the defendant in leaving an elevator well open and unguarded. The complaint was dismissed at the close of plaintiff’s evidence, and appeal comes to this court.
The facts which may be deemed to have been established by the evidence are that on the 1st day of September, 1899, a fire broke out in the factory of the defendant at about five o’clock in the morning, and' while it was yet dark, the weather being threatening;
But in the case now before us it does not appear that the plaintiff entered the building by any way which it was reasonable for the defendant to anticipate any one would enter even for the purpose of putting out a fire, and there is no evidence that the elevator was in
The motion to dismiss the complaint was properly granted, and the judgment appealed from should be affirmed.
Present—Goodrich, P. J., Bartlett, Woodward, Lirschberg and Jenks, JJ.
Judgment and order unanimously affirmed, with costs.