Block v. Grossman ( 1928 )

Per Curiam,

Plaintiffs, father and minor son, sued to recover damages for injury received by the minor under the following circumstances: On September 29, 1924, the minor, then past sixteen, visited the basement of defendant’s place of business for the purpose of returning to the janitor of the building a tool he had previously borrowed; after he delivered the article, the elevator descended and stopped three feet above the basement floor, whereupon plaintiff placed his hand on the floor of the elevator, as it started to ascend, intending to ride to the first floor. Although he failed to board the car, his hand remained on its floor and was 'caught between the floor and the archway at the top of the entrance door, as the car continued to ascend, inflicting on the young man’s hand the injury here complained of. The lower court granted a nonsuit which it subsequently refused to take off and this appeal followed.

A boy sixteen years of age is presumed to see danger and avoid it, and no reason appears in the record why that presumption should not apply here; the minor was above the age mentioned and at the time of the accident an employee in the store of his father in a building adjoining defendants’ at |16 a week; he was familiar with the elevator in question, having used it “lots of times.” He offers no excuse or reason to show why he permitted his hand to remain on the floor of the upward moving ear while he remained on the basement floor; he certainly knew a collision between his hand and the top of the door was inevitable as soon as the elevator reached that point. He could, easily have avoided injury by removing his hand; this any prudent person would have done. His failure to do so was gross negligence on Ms part. The trial judge based the nonsuit (1) on failure of the testimony to show negligence on part of defendants and (2) on the contributory negligence of plaintiff. In both findings he was clearly sustained by the evidence and the judgment must be affirmed.

Judgment affirmed.