10 N.W.2d 623 | Neb. | 1943
This action was brought in the district court for Douglas county to recover damages arising from personal injuries incurred from falling down an elevator shaft. The defendants United States Trust Co., a corporation, and United States National Bank, a corporation, are alleged to be the owners of the building in which such shaft was located. At the close of the plaintiff’s evidence, the trial court, upon motion of the two defendant corporations, discharged the jury and entered judgment for the defendants. The plaintiff appeals.
The elevator shaft involved is a portion of a building hereinafter described. The pleadings and the evidence do not disclose the exact nature of the title or interest owned in such building by either of the two defendant corporations. The pleadings indicate that one of these two corporations succeeded the other as trustee, and, at the time of the accident involved, held the legal title in trust. For the purposes of this opinion we do no violence to any right of the plaintiff by treating the two defendant corporations as being owners of the absolute fee title of the premises in
The building in which the plaintiff was injured is a.six-story brick building facing west and located at 109 South Tenth street in Omaha, Nebraska. This street extends from north to south. The spur of a railroad track extends from east to west and parallel to and only a few feet south of the south wall of this building. The elevator shaft involved is adjacent to and north of the south wall of the building, and is located from 20 to 25 feet east of the west end of such building. The east and west wall of such shaft is of solid brick. At the north and also at the south side of
On the morning of April 24, 1941, the plaintiff, and three of four other employees of defendant Johnson, were sum
One of the grounds of liability on the part of the defendant owners that is urged by plaintiff 'is the failure of such owners to equip the elevator shaft or elevator, with an interlocking device or hold-down latch, and thus to prevent the panel gate on the ground floor and in the north wall of
As has been stated, the plaintiff was well aware of the existence of the elevator shaft. He knew that the north panel gate on the ground floor could be raised upward, whether or not the elevator platform was at such ground floor level. He knew of the existence of the light switch on the north edge of the east wall of the shaft. He knew of the cloudy weather, the dirty windows, and of the semidarkness in the room from whence he entered the shaft. The building involved was not designed for use by the public. It was a warehouse intended for use of the occupant and employees only. Even if it is assumed that the ordinance and safety codes above mentioned were applicable to the building and elevator shaft involved, and even if it is assumed that a violation thereof was negligence per se on the part of the defendant owners, can it reasonably be said by any one that the plaintiff was not guilty of any negligence contributing to the proximate cause of his injury, or that his negligence was not more than slight, or 'that the negligence of the defendant owners was gross in comparison to that of the plaintiff ? We think not. If not, then the contributory negligence of the plaintiff bars his recovery as a matter of law. We are well aware of the rule requiring the evidence to be given that construction that is most favorable to the plaintiff, in adjudging the question of whether or not his contributory negligence bars his recov
It will be noted that, for the purpose of this opinion, we have assumed that both the ordinance and safety codes above mentioned are applicable to the facts of this case. We do not so decide. We have also assumed that a violation of either such ordinance, or codes, would be negligence per se. We do not so decide. No assumption more favorable to the plaintiff, with relation to such ordinance or codes, could be made. We have not seen fit to discuss the question of whether or not the lack of the hold-down latch above mentioned, with plaintiff’s knowledge thereof, and with his knowledge of all conditions surrounding him, was any portion of the proximate cause of the injuries involved, or was, instead, a known and non-acting condition. We have not seen fit to discuss the difference between the du
For reasons above given the judgment of the trial court is affirmed.
Affirmed.