#### Auferheide, Appellant, *v.*Thal, Appellee.

(No. 1847

Decided June 21, 1945.)

*Mr. Paul L. Birt*and *Mr. A. K. Meclc,*for appellant.

*Messrs. Landis, Ferguson, Bieser & Greer,-*for appellee.

Hornbeck, P. J.

TMs case is before us on appeal on questions of law from a judgment of the Common Pleas Court of Montgomery county, Ohio, wherein the court directed the jury to return a verdict in favor of the defendant.

The issues may be gathered from the allegations of the amended petition and the answer thereto. Briefly, the amended petition states that on November 14,1942, and previous thereto, the defendant was the owner of and in control of a building located on East Fifth street in the city of Dayton, Ohio; that the basement of the building was rented by the defendant to and was used *97by the Booth Furniture Company; that the first and second floors were rented by the defendant to The Gilbert Shoe Company, which company in turn sublet the second floor to Alfred S. Daneman, doing business as the Allied Furniture Company; that Daneman rented the fourth floor from the defendant; that the defendant was in control of the elevator and passageway to and from the same; that a power freight elevator had been installed in the rear of the building for the use of defendant’s tenants, and was in use on such date; and that plaintiff was an employee of the "Allied Furniture Company and it was a part of his duties to operate the elevator between the first and fourth floors of the building.

It is further asserted that on November 14 the plaintiff thought the elevator was at the first-floor landing and attempted to enter what he thought was the elevator cage but the elevator had, without his knowledge, been raised to the second floor, and was at the second floor; that there was no gate or other obstruction to bar his entrance into the elevator shaft; and that he fell into the elevator pit and injured himself as described.

It is alleged that his injuries and the damage resulting therefrom, were caused by the negligence of the defendant in four particulars, which may be epitomized as follows:

1. That the defendant maintained the elevator for the use of the tenants, and that it was in such a worn-out and defective condition that the gate thereto at times did not close when the elevator was moved up and down from one floor to another.

2. That the elevator shaft was not equipped at the first-floor landing with self-closing gates, and that the failure to so equip it was in violation of the General Code of Ohio.

*983. The defendant, in violation of the requirements of the General Code, failed to have the elevator lighted.

4. The defendant, in violation of such requirement, failed to have the landing edges of the threshold of the first floor and the car platform plainly visible.

Plaintiff asked judgment in the sum of $25,000.

The defendant, Joseph Thai, for his answer, admitted that he owns the building; and that the first and second floors were rented to The Gilbert Shoe Company, which in turn sublet the s'econd floor to the Allied Furniture Company, the plaintiff’s employer. Defendant also admitted that the. plaintiff fell and received some injury. He denied all other allegations, especially the allegations of negligence charged against him, but said that the plaintiff’s injuries were due solely to the plaintiff’s own negligence; that the plaintiff, in attempting to board the elevator in this building without first determining that the elevator was at the landing on the first floor, and in walking into a place where he could not see what was before him, was chargeable with negligence which contributed to cause his injury.

Before the case had been submitted to the jury, a motion was made by the defendant for an instructed' verdict on the grounds, first, that the plaintiff had failed to show any negligence on the part of the defendant in connection with the maintenance or operation of the elevator, all the testimony indicating that, although the defendant owned the property, he was out of possession and control insofar as the elevator was concerned, and, second, that the plaintiff’s own testimony had clearly raised a showing of contributory negligence on his own part, which had not been refuted in any manner by any other testimony of the plaintiff.

After this matter was argued by counsel to the court, the court sustained the motion.

*99Errors complained of are (1) refusal to permit plaintiff to introduce testimony that the defendant carried insurance on the elevator, upon the issue of the control of the elevator by the defendant; (2) permitting the defendant to tell the jury that one of the lessees, partially using the elevator carried elevator insurance; (3) allowing the defendant to make other statements as to insurance; (4 and 5) allowing counsel for defendant to suggest that plaintiff received compensation for his injuries from the Industrial Commission and received expenses from the Industrial Commission; (6, 7 and 8) sustaining the motion for a directed verdict, overruling plaintiff’s motion for a new trial, and entering judgment against plaintiff; (9) not allowing plaintiff to offer proof that there was a type of elevator gate which would have prevented the accident claimed to have occurred; and (10) not allowing proof of a former accident through the operation of the elevator.

Without going into further detail, it would appear, in addition to those things admitted in the pleadings, that the plaintiff was engaged by The Allied Furniture Company and operated the elevator for it in moving furniture between the first and fourth floors. It appeared that on the day of the accident, at lunch time, plaintiff brought the elevator to a stop on the first floor and, before leaving the second floor, turned out the lights there and thereby also the small light in the elevator, which had no controlling switch in the elevator. There was no light at the elevator platform. It appears that the elevator was used by the tenants on the several floors, at least one of which rented of the defendant. The approach to the elevator was from a loading platform at the rear of the store room, by a narrow passageway between stacked articles.

The gates, which were intended to close automatic*100ally the elevator shaft when the elevator was removed, had, at times, failed’to function properly.

When plaintiff reached the position with respect to the elevator shaft, where he thought the gates were in position, they were not there having stuck when the elevator was moved to the second floor. Plaintiff stepped off the platform into the elevator pit, fell and injured himself.

Errors Nos. 6 and 7. The major and controlling assignment of error relates to the action of the trial court in directing a verdict against plaintiff because of his contributory negligence. In our judgment, upon the evidence in its entirety, there was an issue of fact on this question which should have been submitted to the jury for determination.

The two leading cases in Ohio cited are *Flury*v. *Central Publishing House of Reformed Church,*118 Ohio St., 154, 160 N. E., 679, and *McKinley*v. *Niederst,*118 Ohio St., 334, 160 N. E., 850.

Paragraph three of the syllabus of the *Flury case*is:

“The testimony of a plaintiff invitee, in an action for negligence, that from a lighted room he opened a closed metal-covered sliding door, was confronted with *total darkness*beyond the door, that he then stepped into *such total darkness,*to his injury, *without any knowledge, information or investigation as to what such darkness might conceal,*raises an inference of negligence on his part which, *in the absence of any evidence tending to refute such inference,*will require a directed verdict for the -defendant.” (Emphasis ours.)

Paragraph two of the syllabus in the *McKinley case*is as follows:

“The testimony of a plaintiff, tenant in an apartment house housing several tenants, with halls and stairways in common, that she passed out of her apartment into a hallway in *total darkness,*with full knowl*101edge of the existence of a stairway leading downward only a few steps from thé door of her apartment, and proceeded forward in the direction of such stairway seeking to descend 'the same and fell to her injury, raises an inference of negligence on her part, which, *in the absence of any evidence tending to refute such inference,*justifies the trial court in directing a verdict in defendant’s favor.” (Emphasis ours.)

The emphasis directs attention to the differentiating facts between the cited cases and our case.

The plaintiff in his employment, under instructions, was required to turn out the light on the second floor which operation also turned out the light in the elevator. There was no light control by a separate switch in .the elevator and no light on the landing platform. Pursuant to instructions, the plaintiff, on entering the areaway leading to the elevator, closed the doors to. avoid creating drafts throughout the building. The plaintiff regularly entered the building and proceeded through the areaway to the elevator, knowing the landmarks and how to make his progress to the elevator with the little light he had to guide him and by objects with which he was familiar. The entrance to the elevator into which the plaintiff moved upon opening the doors was not completely dark. In both cited cases the injured person stepped into pitch-darkness. In the instant case, when the plaintiff opened the door there was enough light for him to see the elevator shaft and the gates, had they been in place, and to see through the shaft to the other side of the pit. He testified he saw the landing platform and also what, in the dim light, he thought were the gates in front of the elevator. What he actually observed was an object, an elevator gate, which had been placed there but a short time before on the opposite side of the opening to the shaft and which could have been mistaken for the gates at the entrance to the elevator on the side from which the *102plaintiff would enter. In the situation with which he was confronted, he took other precautions which on other occasions had been sufficient to protect him. The fact that, if he had observed many other and different precautions, he might have avoided the accident is not sufficient to support the conclusion that, as a matter of law, he was contributorily negligent. It is quite true that there was ample support for a determination by the jury that his negligence contributed to cause his injury, but the right to have a jury pass‘on this question should not have been taken from plaintiff.

Error No. 1. The court should have admitted the insurance policy which the defendant carried to indemnify him for damages which he might be required to pay by reason of' the improper condition of the elevator. This was a circumstance, along with other testimony, reflecting upon the question whether the defendant exercised control over the elevator, the landing platform and the entrance thereto, particularly, at the first floor.

Error No. 8. Although it was a close question, there was an issue of fact whether defendant exercised some joint control over the elevator at the place where the plaintiff was injured.

Under the contract between the Gilbert Shoe Company and the Allied Furniture Company, the latter agreed *“to*make all repairs in the interior of the building * * * and to indemnify lessor, The Gilbert Shoe Company, from damages * * * by reason of any repairs or improvements which may be made by said lessee on said premises but that it would not make any major repairs without the written consent of lessor.” The extent to which the Allied Furniture Company made repairs on the elevator, the landing platform and equip•ment is not. developed with particularity in the record. At the time this contract was made, the Booth Fur*103niture Company was not a tenant in the building and afterwards was rented the basement and possibly an upper floor by the defendant. Defendant stated in his testimony that, at the time the Booth Furniture Company’s lease was under consideration, he became impatient with the Gem City Elevator Company and made a deal with the Otis Elevator Company to do the work on the elevator. Thus, notwithstanding the contract between the Gilbert Shoe Company and the Allied Furniture Company, the defendant leased to the Booth Furniture Company the basement which necessitated use of the elevator by the Booth Company. If it be conceded, which is in doubt, that the Allied Furniture Company agreed with the Gilbert Company unconditionally to maintain the landing platform and the gates at the first floor, the jury might well have found that the defendant elected to exercise some control over this equipment at least at the first floor where the elevator was loaded and unloaded. The question whether he was in joint control, insofar as the plaintiff was concerned, is factual.

Error No. 9. It was the obligation of those who provided the elevator in defendant’s building to make use of the best and most improved machinery and devices in such general practical use in freight elevators as was required by the tenants in the Thai building'. The plaintiff did not develop or proffer testimony of sufficient weight to make a question for the jury whether the gates in use on the elevator were such as was required to be provided under the law. The evidence, as offered, on this subject was properly refused.

Assignment of error No. 4 is well taken.

Other assignments or error are not well made.

The judgment is reversed and the cause remanded.

*Judgment reversed and cause remanded.*

Miller, J., concurs.

*104Geiger, J.,

dissenting. Without going into detail, but after reading the record in its entirety and all the pleadings filed in this case, I arrive at the conclusion that the court was not in error in instructing a verdict in favor of the defendant. The plaintiff had sufficient knowledge of the operation of the elevator and was in charge of such operation without any control by the owner.' lie also had knowledge that the elevator at times failed to respond as it should, in that the gates did not fall back into a protecting position after the elevator cage had left one floor for another. But all this was known to the plaintiff. Had he availed himself of the information that he had and recognized the possibility that the elevator might have been moved from the floor where he had left it half an hour before, the accident would not have occurred. See paragraph three of the syllabus of *Flury*v. *Central Publishing House of Reformed Church,*118 Ohio St., 154, 160 N. E., 679, and the second paragraph of the syllabus of *McKinley*v. *Niederst,*118 Ohio St., 334, 160 N. E., 850.

The fact that the owner may have sought additional protection through an additional policy did not put him in control of the operation of the elevator, which control remained with the several tenants of the building using the elevator.