Opinion
April 19, 1943.
Action to recover damages for personal injuries suffered by the plaintiff when he fell into a freight elevator shaft in a building owned by his employer, to which he had returned after working hours to recover his pocketbook. Judgment entered on the verdict of a jury in favor of the plaintiff reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs. There is no evidence of breach of duty owed by the defendant to the plaintiff. A stairway was in existence which, concededly, was for the use of employees. To the knowledge of the plaintiff passenger-riding on the elevator was forbidden by the defendant and by the law.
Hagarty, Adel and Taylor, JJ., concur; Carswell and Johnston, JJ., concur in the reversal but dissent as to dismissal of complaint and vote for a new trial, with the following memorandum:
The court erred in its charge in respect of the duty owing to a licensee, as compared with an invitee. There was proof of an act of affirmative negligence if plaintiff's story be credited that defendant's employee directed and required plaintiff to use the elevator, hence furnishing a basis for liability on the theory that plaintiff was a licensee.