Bremer v. Pleiss
98 N.W. 945
Wis.
1904
Check Treatment
WiNslow, J.

There was doubtless ample evidence tending to show negligence on the part of the defendants in the management of this elevator. The plaintiff’s evidence tended to show that it was located in a dark corner of the office room, and so arranged that in the daytime it was nearly or quite impossible to see into the shaft; that no light was maintained either outside of the shaft or inside of the car during the day-. time; and that on the occasion in question the door of the 'shaft was left partway open when the car was not there. This court has said that it is the duty of the proprietors of passenger elevators to see that they are “properly and safely constructed, and operated with the highest degree of skill and care commensurate with or proportionate to the possibility of injury to passengers in the use of such elevators” (Oberndorfer v. Pabst, 100 Wis. 505, 76 N. W. 338), and this is in accord with the law universally laid down by the courts. Rut as it is not claimed that the evidence was insufficient to take the question of defendants’ negligence to the jury, it is unnecessary to spend time upon it. The question presented is whether, the court was right in holding that the evidence showed the plaintiff guilty of contributory negligence as matter of law. The facts as shown by his own evidence were that he was very familiar with the elevator, and knew that it was in a very dark place and was not lighted in the daytime; that he approached it, having in mind the question whether the car was there or not; that before stepping in he looked at the open hole, and saw no car, because it was dark; that the door was only partly open — about half open — and that he pushed it open with his shoulders and stepped in; that only a few moments before he had stepped into the car through the door, which was then fully ojpen. Upon these facts, is there a question for the jury? There is no doubt that, when a door to an elevator shaft is thrown open by the attendant, that very act constitutes an invitation to enter. Tousey v. Roberts, 114 N. Y. 312, 21 N. E. 399; Oberndorfer v. Pabst, *65supra. So it bas been beld that, where the door is fully open and the shaft is dark, the question whether a passenger is guilty of contributory negligence in stepping in without examination is one for the jury. Peoples Bank v. Morgolofski, 75 Md. 432, 23 Atl. 1027; Southern B. & L. Asso. v. Lawson, 97 Tenn. 367, 37 S. W. 86; Dawson v. Sloan, 49 N. Y. Sup. Ct. 304, affirmed in 100 N. Y. 620. We have foun'd no case, however, holding that where the door to the shaft is only halfway open, so that the passenger entering is obliged to, and does, open it the rest of the way in order to enter, the question of contributory negligence is a matter of doubt; nor do we see how it could be so held. It seems to us entirely clear that the fact that the door is only partway open is a definite and unequivocal advertisement that something is wrung — certainly not an assurance that the car is there. The use of passenger elevators is now so universal that all know that when an elevator car is brought to a standstill, ready for passengers to enter or leave, the door is always thrown wide open. A door only halfway open is a plain suggestion of some unusual condition — a hint to investigate, not an invitation to enter or an assurance of safety. In this view of the evidence, we think the nonsuit was rightly granted.

By the Gourt. — Judgment affirmed.