142 Mich. 589 | Mich. | 1905
(after stating the facts). It is urged that the defendant violated its statutory- duty imposed by % Comp. Laws, §§ 5346, 5368, in not providing an automatic gate in front of the shaft. The object of these statutes is to prevent employés and others rightfully upon the premises from .falling into the shaft or well of the elevator. It is doubtful if either section of the statute includes a situation such as is shown by this record. There was no well or shaft in the basement into which an employe might fall. This shaft was close, to the side wall of the building. There was no danger of,injury to any employe by falling into this slight depression. Quite manifestly a gate, unless it was close to the floor and several inches from the edge of the depression, would not have avoided the accident; for with such a gate she could have stood where she did, with her foot extending under the gate and over the edge of the depression. Evidently no inspector, under this statute, had required the defendant to construct a gate. It is, however,-unnecessary to determine this question, inasmuch as the court below directed a verdict on the ground of plaintiff’s contributory negligence. In this the court was clearly i*ight.
Plaintiff testified that she stood with the ball of her foot upon the floor. A small portion of her foot extended over the edge of the depression. She looked up and saw the elevator coming. Though it was somewhat dark in the basement, she could readily see the opening above her and the elevator descending. Any one of intelligence — and it is not disputed but that she was a girl of fully, if not more than, average intelligence — would have known how near she was standing to the opening. She testified that she saw the elevator descending, and saw the chain alongside. She stood about a foot from one of the posts. She saw the elevator as the bottom of it descended in front of her face, and yet she did not withdraw her foot or step back. If she stood erect, her foot could not have been more than two or three inches in advance of her face. If she stood ■.upon one foot, with the other extended forward with the
Plaintiff was perfectly familiar with the surroundings. There was ample room for her to stand a sufficient distance from the shaft. While it seems certain that she could see to determine how near she was to the shaft, yet, if it be true that she could not, she had ample time to feel, and by extending her hand could have touched the post, which would have disclosed to her her position. There was ample room and ample time for her to step back and remain in a safe place. * There was no conflict upon the facts, nor, as the judge held, can reasonable men draw different conclusions from the conceded facts. The plaintiff for some reason was undoubtedly heedless of her position. She had been, or was, talking with a companion about a party which they were to attend. The slightest precaution upon her part would have avoided the .injury.
Judgment affirmed.
