
    Loretta M. Donohue, as Administratrix, etc., of Thomas F. Donohue, Deceased, Respondent, v. Charles Braaf, Appellant.
    First Department,
    December 6, 1907.
    Negligence—fall down elevator shaft — contributory negligence of deceased.
    Evidence in an action against the proprietor of a hotel to recover for the death of a patron who fell down an elevator shaft examined and held that the deceased ■was guilty of contributory negligence which barred a recovery.
    LaughliNj J,, dissented.-
    
      Appeal by the defendant, Charles Braaf, from a judgment of the Supreme Court in favor of' the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of March, 1907; upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 28th day of March, 1907,, denying the defendant’s motion, for a new trial made upon the minutes.
    
      Carl Schurz Petrasch, for the appellant.
    
      George Gordon Battle, for the respondent.
   Ingraham, J.:

The plaintiff’s intestate died as the result of injuries sustained by .falling down an elevator shaft on the premises of defendant in the city of New York. The .defendant was the proprietor of a hotel in which there was a saloon on the ground floor. On Saturday, the 17th of March, 1906, between eleven and twelve o’clock at night, the deceased with a companion went to this saloon; after staying there about fifteen or twenty minutes they started to leave by the public entrance by which they had entered, when the barkeeper told them that the saloon was closed and theyVonld have to go out through the rear of the building ; the barkeeper then led the way towards the rear of the saloon and opened a door through which the deceased and his companion passed, the barkeeper following them; this door entered into what was to be a dining room but which was then being repaired; the deceased led the way into this room followed by his companion and by the barkeeper, who appears to have been about fifteen feet behind; passing through this room, between the scaffolding and partitions in the course of • erection, the deceased and his companion came to two doors, the approach to which was up two or three steps, and as to one of which the deceased’s companion testified that it has the appearance of being an elevator door; this door was partly constructed of glass, through which a light was shining, while on the left of this door was an ordinary door; the door, which had.the appearance of being an elevatoi door, opened directly to the north while the other door opened towards the west; there was an electric light lighted in this room and the deceased’s companion testified that both doors were plainly visible the deceased approached the door through which a light was shining with his head turned towards his companion, who was following, and talking and laughing with him; as lie approached the door and put his hand upon it the barkeeper shouted : Don’t go out that way; ” the deceased, however, in some way opened the elevator door, stepped into the elevator shaft, fell.to the bottom and was killed. An examination of this door-disclosed that although there was a -hasp "so constructed" that if the hasp caught. the door could be only opened from- the inside of the elevator shafts for-'some reason the hasp had not caught and the door could be opened from the outside by-.pushing it to one side. The.court submitted the question as to the defendant’s negligence and the freedom of the deceased from contributory negligence to the jury, who found a verdict for the plaintiff

I do not .think there was. evidence of the defendant’s negligence. The door was not open ; there was. not such -air absence of light that a person - walking, through this - room-could not-see the situation ;. there was no invitation by the defendant to open the door and walk into the elevator- shaft, arid as the elevator shaft was lighted as soon as the door had been, opened' -the fact that this was not a means of exit’ to the street must have, been apparent. The defendant could not l,ia,ve anticipated -that a person walking through this .room would open this elevator door and walk into the elevator shaft, which was lighted arid the danger of which was apparent. But whatever may be sáid as "to the defendant's negligence it is. quite clear that the deceased was guilty of contribu tory negligence. He approached a door which liad the appearance of" being, the door of ah elevator through which there was a light shining, opened the door with his head turned over his shouldei- so that he could not see where he was going, and' stepped into a lighted-elevator shaft without looking. The slightest attention to the "dodr before he attempted to open it, or the slightest look after he opened the door and before he stepped in, would have apprised, him of the situation and prevented the accident: Certainly nothing ip the situation prevented the deceased from seeing where. he was going, or distracted his attention in such a way’ as to excuse him. from looking. If .the deceased had shown the slightest Care, in examining the door he was about to enter, either before or after he had-opened it, or had waited until lie could have heard the warning of the barkeeper who was following him, the accident would have been avoided. The evidence of the witnesses for the plaintiff and defendant was that there was plenty of light to see the two doors, and certainly, under such circumstances, á person was not justified-in opening a door and walking through it without taking the slightest care to see what was on the other side.

The case of Camp v. Wood (76 N. Y. 92) is not at all in point. There the proprietor of a hotel rented a large room in the hotel for a hall, to which anybody paying the price of admission was admitted. On the way to the ball room there was a door opening, out on the top of an awning, which was unguarded. A person attending the ball started to go into the street, mistook this open door for the street door, walked through it, fell off the awning into the street and was injured. A recovery in that case was sustained upon the ground that it was negligence to leave a door, which persons not familiar with the q>remises might in the night time mistake for the door into the street, open. In this case the door was closed, and for the deceased to go through it it was necessary that he should open it, and when he opened it and walked through' without looking to see where he was going, when there was plenty of light for him to see, it is quite clear that the accident was the result of his negligence, for which neither he nor his personal representatives could recover.

It follows that the judgment and order appealéd from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, P. J., Clarke and Scott, JJ., concurred ; Láughlin, J., dissented.

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