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Kaminsky v. Arthur Rubloff & Co.

JUNE 17, 1966.

J. DAVID KAMINSKY, PLAINTIFF-APPELLEE,

v.

ARTHUR RUBLOFF & COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. ABRAHAM W. BRUSSELL, Judge, presiding. Reversed and remanded.

MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.

Plaintiff brought an action based upon negligence to recover damages for injuries which were sustained by him when he unlocked the first floor door to an elevator shaft, stepped in while the elevator was at another floor, and fell to the bottom of the shaft. A judgment in favor of the plaintiff for $15,000 was entered upon a verdict returned by the jury after which defendant filed motions for judgment notwithstanding the verdict and in the alternative for a new trial, both of which were denied. Defendant appeals from the verdict and judgment and from the denial of those motions.

On the day of the accident (December 23, 1953) plaintiff was employed as manager of the Martha-Maid Manufacturing Company, a tenant of the sixth floor of a building which was managed by defendant, located at 367 West Adams Street. Plaintiff's employer and another tenant of the building had permission to use the passenger elevators after 6:00 p.m., when the elevator cars were closed down and the elevator operators off duty. After 6:00 p.m. the elevator doors could be opened only by inserting a "key" through a hole therein, and the elevator could be at any floor when the door was opened in that manner. Shortly after 6:00 p.m. on the aforesaid date plaintiff returned to the building of his employer following an office Christmas party to complete some work, first entering the lobby which was described as being approximately thirty feet in length and ten feet wide at the front door but narrowing to six feet in width about thirteen feet from the front door. Two passenger elevators are at the rear of the lobby. Plaintiff obtained the "key" and unlocked the door to one of the elevators without difficulty. He then opened the door but did not look through a window therein to ascertain whether the elevator was at the first floor, and simultaneously stepped in, but the elevator was at a higher floor and plaintiff fell to the bottom of the shaft.

Plaintiff testified that the normal practice in the building after 6:00 p.m. was to leave the elevator on the ground floor with the door closed and the light turned off (the light switch was inside the elevator approximately thirty inches from the edge of the elevator door); that on prior occasions when the elevator was in this position the indicator light above the elevator would be unlit; that he had used the elevator five times per week after 6:00 p.m. since 1949; and that whenever he opened the elevator door in the aforesaid manner he always found the elevator to be at the lobby floor. The plaintiff further stated that on the night of the accident the elevator indicator light was unlit as usual and that he relied thereupon for assurance that the elevator was on the ground floor.

The testimony is in conflict as to what type of indicator light was used and whether it would be lit when the elevator was on the ground floor.

The testimony was also in conflict as to the type of night light burning in the lobby. Plaintiff testified that:

When I walked in there [the lobby], there was one light on in the lobby. That was at the front of the lobby, about twelve feet in. . . . The light was in the ceiling, about fifteen feet high.

It was a fluorescent light. It was rather dim.

Paul McClosky, who had been employed by the defendant at the building in question for fifteen years, testified that:

As to what lights were lit after the building was closed, the 8-foot fluorescent lights directly in front of both elevators were lit at all times during the night. After six, there was no other light in the lobby except the 8-foot fluorescent lights. The ceiling was ten feet high. The . . . light was about five feet from the elevator doors, I imagine.

George Jones, who had worked for the defendant for eighteen years, stated that:

Yes, there was such a thing as a night light. In the lobby, that consisted of two fluorescent light tubes. They were located up in the ceiling, in front of the elevators. The lights were something like eleven feet from the floor. . . .

In addition, Louis Capron testified and stated that he was employed by the defendant until 1964; that at the time of the accident he managed the building in question for the defendant; and that:

As to what you would see if you looked into this elevator shaft through this window when the light in the elevator was out, you would see nothing.

Unless you have very strong eyes, it ...


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