
    The Burt Furniture Co. v. Smith, a Minor.
    (Decided June 24, 1929.)
    . Messrs. Mooney, Hahn, Loeser & Keough, for plaintiff in error.
    
      Messrs. Anderson & Lamb, for defendant in error.
   Kunkle, J.

Defendant in error, Harry Smith, a minor, sought to recover a judgment against plaintiff in error in the sum of fifty thousand dollars for personal injuries claimed to have been received through the negligence of plaintiff in error.

Defendant in error, in brief, in his petition claims that he is a minor eighteen years of age and therefore brings this suit by his next friend; that plaintiff in error is a corporation organized under the laws of Ohio; that on or about June 30,1927, he was employed as a mail carrier in the employ of the United States government, and in the afternoon of that day, while in the course of his regular duties as a mail carrier, entered the Ohio Building, of which plaintiff in error was the lessee, for the purpose of delivering mail; that to reach what is known as the receiving room, which plaintiff in error provided for leaving and depositing mail, freight, and express matter for the various tenants of the building, it was necessary for him to cross the floor of the elevator, the shaft of which is located in the hallway of said building, and the gate of which is operated mechanically, so that when the elevator leaves the floor said gate is automatically closed, thereby closing the opening of said elevator shaft; that as he approached said elevator the gate was up; that said hallway was insufficiently lighted; that the operator of said elevator, who was in charge of the same, was an employee of the defendant; that as plaintiff passed under said gate he was precipitated to the bottom of the elevator shaft, thereby sustaining the injuries described in detail in the petition.

Defendant in error claims that the said injuries were directly and proximately caused through the negligence of plaintiff in error in the respects substantially narrated above, and which are stated in detail in the petition.

Plaintiff in error filed an answer in which it admitted its corporate existence, that defendant in error was engaged in carrying mail on the 30th day of June, 1927, in the Ohio Building, which is owned and operated by plaintiff in error, and that he sustained certain injuries when he fell through an elevator shaft.

Plaintiff in error denies that defendant in error was injured to the extent claimed, and avers that said accident and said injuries which defendant in error received were directly and proximately caused either by the sole or the contributory negligence of the defendant in error.

An issue being joined by the pleadings, the case was submitted to a jury, with the result that a verdict was returned in favor of defendant in error in the sum of $3,500.

Motion for a new trial having been overruled, error is prosecuted to this court.

Counsel for plaintiff in error rely principally for a reversal of this judgment upon the ground that the record shows that the injuries received by defendant in error were due to contributory negligence upon his part. We have read the record in this case, and have also considered the very helpful briefs which have been filed by counsel, in which not only many of the pertinent portions of the testimony are set forth, but the controlling decisions of our courts are cited and commented upon. We shall not attempt to quote from the testimony in detail, nor shall we undertake a discussion of the authorities. We deem the same • unnecessary, as counsel are thoroughly familiar, not only with the evidence, but also with the respective authorities relied on. We shall merely announce the conclusion at which we have arrived after reading the same.

We think there is evidence in the record which justified the finding of the jury, namely, that plaintiff in error was guilty of negligence, and that under the circumstances disclosed by the record the defendant in error was not guilty of contributory negligence.

This is not a case in which the injured person was required to open a door or a gate before injury could result, which was the situation in some of the cases cited. The gates in question were up, and we think defendant in error had a right to assume that the elevator was in proper place at the floor landing, and that the passageway to the place where he was required to go was safe. The question of contributory negligence was an issue of fact for the jury.

We think the trial court properly refused the two special instructions requested by counsel for plaintiff in error. We are also of the opinion that the trial court in its charge to the jury fully and fairly presented the issues in the ease for its consideration.

We have considered all of the errors urged by counsel for plaintiff in error in their brief, and, finding no error in the record which we consider prejudicial to plaintiff in error, the judgment of the lower court will be affirmed.

Judgment affirmed.

Allread and Hornbeck, JJ., concur.

Judges Kunkle, Allread and Hornbeck, of the Second Appellate District, sitting by designation in the Eighth Appellate District.  