Opinion
Argued June 6th, 1929
Decided July 10th, 1929.
ACTION to recover damages for the death of the plaintiff's intestate, alleged to have been caused by the negligence of the defendant, brought to the Superior Court in Fairfield County and tried to the jury before Wolfe, J.; the court nonsuited the plaintiff and from the denial of her motion to set aside the judgment entered thereon the plaintiff appealed. No error.
Murray Reich, for the appellant (plaintiff).
William H. Comley, for the appellee (defendant).
Giving the plaintiff the benefit of the evidence introduced by him which went farthest in support of his cause of action and taking into account every favorable inference that might reasonably be drawn from it, we are unable to hold that the plaintiff established the freedom of his decedent from negligence which materially contributed to his death; on the contrary we are of the opinion that no reasonable conclusion can be reached other than that the decedent's own negligence was a material and proximate cause of his death. He knew the material elevator was liable to be in operation and that it could not be seen unless one leaned over in the space through which it descended. While he remained on the platform or ramp he was safe from injury from the descent of the elevator. He desired to get from this platform to the ladder to the left of the elevator well. By taking hold of the upright of the scaffolding he could swing himself inside or back of this upright to the ladder and in doing this he would be in no danger from the descent of the elevator. Instead of adopting this method he started to swing himself from the ramp outside of this upright which brought him in the path of the descending elevator. When he saw or heard the descending elevator he tried to turn back; it was too late, the elevator struck him and he fell to the bottom of the well and in consequence of the injuries suffered, died. The nonsuit was properly granted.