
    No. 572
    ROBINSON v. STOUT
    No. 19858.
    Supreme Court
    On motion to certify.
    Dock. June 1, 1926.
    829. NEGLIGENCE — Where in an action for personal injuries received by falling down an elevator shaft it is shown that the injured party was familiar with the elevator and ’ yet walked into the shaft while the elevator was at an upper story, has such contributory negligence been committed as to preclude a recovery?
    Attorneys — A. M. Rodgers and C. H. Klinger, Lima, for Pltf.; J. H. Flick and E. M. Bot-kin, Lima, for Deft.
   W. L. E. Stout brought this action originally in the Allen Common Pleas against O. C. Robinson for the recovery of damages sustan d irom personal injuries. It appears that Robinson had leased a certain building in Lima and had then released portions of the building to retail merchants. A freight elevator in the building provided for the use of tenants was operated by any party using the same and -Stout was injured while attempting to deliver some ice by walking into the shaft which was partly opened and fall'ng to thi basement, the elevator being at the second floor. The evidence disclosed that Stout had operated the elevator on previous occasions and that he assumed the elevator to be on the fust floor, it being too dark for him to see that the elevator’ was not on the first floor.

The judgment of the Common Pleas rendered on a verdict for Stout was affirmed by the Court of Appeals.

Robinson in the Supreme Court contends:

1. That Stout committed contributory im >■ - ligence and should thereby be precluded from a recovery.

2. That the judgment is contrary to law in that it permits a recovery by one who has committed contributory negligence.  