153 Ky. 214 | Ky. Ct. App. | 1913
Opinion of the Court by
Affirming.
On October 19,1909, plaintiff, W. T. Sapp, was in the store of the defendant, S. Shapinsky & Company, a cor
The error of the trial court in refusing a peremptory instruction in favor of defendant is the only ground .urged for reversal.
The defendant conducts a wholesale dry goods and clothing establishment in the city of Louisville. Its place of business is on the north side of Main Street, between Sixth and Seventh Streets. The building is five stories high, and there is an elevator in front of the building a few feet from the front entrance on Main Street, which runs from the basement to the fifth floor. The elevator is operated by electricity. The elevator shaft is situated on the east side of the building. In its rear is the east wall of the building. On each floor the elevator shaft is enclosed with automatic safety gates. The north and south sides of the elevator shaft are enclosed with a wooden casing on each floor. According to the plaintiff, the banister or casing was “something like three or three and a half feet — possibly a little higher. It was not over three and a half or four feet, anyhow.” According to the evidence for the defendant the casing was five feet high.
At the time of the alleged accident, plaintiff, who was 39 years of age, conducted a country store in Marion County. He came to Louisville to purchase goods. For, this purpose he went to defendant’s store. He had ridden on the elevator once before. On the occasion in question, he went up to the second floor. He. first stated that he went up on the elevator. He afterwards stated that he was under the impression that he walked up the steps, hut that he would not be positive. Upon the floor and the tables were stacked piles of goods of all sorts. Plaintiff, in company with one of defendants’ salesmen, examined the goods and ordered such goods as he desired. While standing near the front of the building, another salesman told the salesman who was then displaying the goods to plaintiff to have plaintiff examine a lot of head shawls upon the floor. At that time he had been on the second' floor about 20 minutes. The head shawls were ricked out
The evidence for the defendant was to the effect that there were three large windows in front of the building
Defendant asked for a peremptory both at the close of plaintiff’s evidence and at the close of all the evidence.
For the defendant it is contended that there is not a scintilla of evidence to show that the elevator shaft was not properly enclosed, or should have been enclosed or encased in a different manner, or that it was customary for persons engaged in a similar business to encase their elevator shafts in a manner different from that employed by defendant. On the contrary, it is claimed that the evidence shows that the shaft was enclosed by wooden banisters, according to plaintiff’s evidence, three and a half or four feet high, and according to defendant’s evidence, five feet high. It is further insisted that the case is simply one where plaintiff, knowing the elevator shaft and banisters were there, extended his arm over the railing into the shaft where the elevators were ascending and descending, and thus voluntarily exposed himself to danger. It is therefore argued that not only was no negligence shown on the part of defendant, but that the accident was the result of plaintiff’s contributory negligence in knowingly disregarding the ordinary operation of familiar natural laws, and that the case falls within the principle announced in such cases as Kelly v. Barber Asphalt Co., 93 Ky., 363; Mellott v. L. & N. R. R. Co., 101 Ky., 212; Wilson v. Chess & Wymond Co., 117 Ky., 567; McCormick Harvesting Machine Co. v. Liter, 23 Ky. L. Rep., 2154; Lindsay v. Hollenbach & May Co., 29 Ky. L. Rep., 70.
It must be remembered, however, that it was the duty of defendant to use ordinary care to keep and maintain
Judgment affirmed.