
    Moses Kaplan, Respondent, v. The J. C. Lyons Building and Operating Company, Appellant.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Elevators — Contributory negligence.
    The mere fact that the door of an elevator is left open does not constitute an invitation by the owner of the building to enter the elevator when no one is in charge of it; and one who walks into an elevator standing empty without any one in control of it has not shown freedom from negligence contributory to his resulting injuries.
    Appeal by the defendant from a judgment of the City Court of the city of ¡New York, entered in favor of the plaintiff upon the verdict of a jury, and also' from an order denying a motion for a new trial.
    Frank V. Johnson (Louis Cohn, of counsel), for appellant.
    Charles S. Rosenthal, for respondent.
   Hendrick, J.

The weight of the evidence does not sustain the plaintiff’s contention. He is uncorroborated, and describes a condition of affairs that is highly improbable, if not impossible. It is not contended that the elevator and machinery were not in perfect order, so that the only negligence attempted to he shown was in the act of defendant’s servant, the elevator attendant. On that point the evidence of the defendant is positive that the elevator man was not in the building at the time; and it would require more than the impossible story of the plaintiff to overcome that testimony. Moreover, I do not think that the plaintiff’s freedom from contributory negligence was shown. He walked into the elevator while it stood there empty and without any one in control. He placed himself in a position of danger. The mere fact that the door was open was not an invitation to get into' the elevator when no one was in charge of it. Green v. Urban Contracting & Heating Co., 106 App. Div. 460.

Giegerich and Ford, JJ., concur.

Judgment and order reversed and new trial ordered, with costs to-appellant to abide event.  