PARKER, J.
The action in the court below was by Klussman against The Chamber of Commerce Building Company to recover for an injury claimed to have been sustained through the negligence of the defendant company in allowing a door leading to an elevator shaft in the Chamber of Commerce building, where Dr. Klussman was a tenant, to remain open,' whereby he was misled, supposing the cab of the elevator to be there, and walked into the shaft and fell to the bottom thereof, and was severely injured. He recovered in the court below a verdict for $5,000, which amount the court required' him to- reduce to $2,500, and judgment was entered for that amount. But the Chamber of Commerce Building Company, not being satisfied, prosecutes error here. They contend that the court erred in discharging a former jury which had heard a part of the testimony in the case. It appears that while the trial of the case was in progress the wife of one of the jurymen died, and that necessarily required a cessation, of the trial for awhile; and afterwards it appears that the. juror came into court and reported that he would not be able to sit in the case any more at that term on account of his bereavement, and the court, upon consideration of the matter, discharged the jury. One of the parties was ready to proceed with the remaining jurors, bur the other party was not, and the court, holding that the other party could not be compelled to proceed, there was nothing left.for the court to do but to discharge the jury; and we think that this was an emergency coming within the provision of Sec. 5195 Rev. Stat., authorizing a court to discharge a jury and that there was nothing in that of which the plaintiff in error had a right to complain.
It is said that the court erred in admitting certain testimony at page fifty-six of the record, and turning to that page we find some testimony upon the subject of the condition of the elevator upon former occasions. One of the complaints about this elevator was; that the boy who operated it was negligent in leaving it open,; another was, that the hook on the door was out of order, and that when the door was pulled shut it would not latch or lock and remain shut, but would rebound, and that the door was open upon this occasion through the neg[730] ligence of the elevator boy in failing to shut it, or in consequence of such defect in the lock, and this question was asked:
'‘You may state what you observed and how the door operated that day?”
(Referring to a former occasion.)
That was objected to, the objection overruled and defendant excepted. The witness answered:
'T went in to take the elevator and the car was not there. I waited, oh, a moment, I guess, and the car came down and I stepped inside and the car started and the elevator boy pushed the door to and it flew back; my attention was called to it, and I called his attention to it.”
Now we think., that that was competent on the question whether the lock of the elevator worked properly, or whether it was out of order, and whether it was probably in consequence of that that the door was open upon the occasion that the plaintiff below received his injury, and in that view we are sustained by a decision, Colorado Mortgage & Investment Co. v. Rees, 21 Col. 435 [42 Pac. Rep. 42], which is directly in point; and we think too that the ruling rests upon reason and does not require much authority. The third paragraph of the syllabus is as follows:
“Where, in an action for damages for injuries sustained by falling down an elevator shaft, the scope and tendency of the plaintiff’s evidence was to show that the elevator door was open at the time of the accident because of the defective condition of its lock, as claimed by plaintiff, it is admissible to show that the door was open at times antecedent to the accident in corroboration of that claim, and as tending to show a previous and continuous defective condition and notice thereof to the defendant.”
The important question in this case, and the one most debated, is whether the plaintiff below was guilty of contributory negligence. It appears that upon the occasion when he was injured, he left his office on the second floor and went to the elevator and inquired of the boy operating it where he could find a hammer which he desired for opening a box of goods in his office. The boy stated to him that he could probably obtain a hammer from the janitor on the floor next below, and thereupon he went into the elevator and was taken by the boy down to the floor next below, to wit, the first floor of the building, and went to the room of the janitor, which was some seventy-five or eighty feet from the elevator, made known his wants to the janitor, was furnished with a hammer and came back to the elevator. The door was open, as I have [731] said, and supposing that the elevator cab was still there, and without stopping to make careful observation, he walked right in and fell down to the bottom, some fifteen or sixteen feet below, and was injured. It appears that the hallway was reasonably well lighted by the sun. This accident happened about three o’clock in the- afternoon, and there was no necessity for any artificial light in the hall, and customarily artificial lights were in the cabs. The plaintiff says there was no artificial light on this occasion, but we think the preponderance of the evidence establishes the fact that there was a light in the cab. This elevator shaft accommodated two elevators, running side by side and both opening out into the main hall. The one upon which plaintiff had come down one floor was the easterly elevator of the two; being one that was sometimes used for freight, it having a place below that where passengers ride, for the carriage of freight, although it was a regular passenger. elevator. The testimony convinces us that there were electric lights burning in both elevator cabs.
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PARKER, J.
The action in the court below was by Klussman against The Chamber of Commerce Building Company to recover for an injury claimed to have been sustained through the negligence of the defendant company in allowing a door leading to an elevator shaft in the Chamber of Commerce building, where Dr. Klussman was a tenant, to remain open,' whereby he was misled, supposing the cab of the elevator to be there, and walked into the shaft and fell to the bottom thereof, and was severely injured. He recovered in the court below a verdict for $5,000, which amount the court required' him to- reduce to $2,500, and judgment was entered for that amount. But the Chamber of Commerce Building Company, not being satisfied, prosecutes error here. They contend that the court erred in discharging a former jury which had heard a part of the testimony in the case. It appears that while the trial of the case was in progress the wife of one of the jurymen died, and that necessarily required a cessation, of the trial for awhile; and afterwards it appears that the. juror came into court and reported that he would not be able to sit in the case any more at that term on account of his bereavement, and the court, upon consideration of the matter, discharged the jury. One of the parties was ready to proceed with the remaining jurors, bur the other party was not, and the court, holding that the other party could not be compelled to proceed, there was nothing left.for the court to do but to discharge the jury; and we think that this was an emergency coming within the provision of Sec. 5195 Rev. Stat., authorizing a court to discharge a jury and that there was nothing in that of which the plaintiff in error had a right to complain.
It is said that the court erred in admitting certain testimony at page fifty-six of the record, and turning to that page we find some testimony upon the subject of the condition of the elevator upon former occasions. One of the complaints about this elevator was; that the boy who operated it was negligent in leaving it open,; another was, that the hook on the door was out of order, and that when the door was pulled shut it would not latch or lock and remain shut, but would rebound, and that the door was open upon this occasion through the neg[730] ligence of the elevator boy in failing to shut it, or in consequence of such defect in the lock, and this question was asked:
'‘You may state what you observed and how the door operated that day?”
(Referring to a former occasion.)
That was objected to, the objection overruled and defendant excepted. The witness answered:
'T went in to take the elevator and the car was not there. I waited, oh, a moment, I guess, and the car came down and I stepped inside and the car started and the elevator boy pushed the door to and it flew back; my attention was called to it, and I called his attention to it.”
Now we think., that that was competent on the question whether the lock of the elevator worked properly, or whether it was out of order, and whether it was probably in consequence of that that the door was open upon the occasion that the plaintiff below received his injury, and in that view we are sustained by a decision, Colorado Mortgage & Investment Co. v. Rees, 21 Col. 435 [42 Pac. Rep. 42], which is directly in point; and we think too that the ruling rests upon reason and does not require much authority. The third paragraph of the syllabus is as follows:
“Where, in an action for damages for injuries sustained by falling down an elevator shaft, the scope and tendency of the plaintiff’s evidence was to show that the elevator door was open at the time of the accident because of the defective condition of its lock, as claimed by plaintiff, it is admissible to show that the door was open at times antecedent to the accident in corroboration of that claim, and as tending to show a previous and continuous defective condition and notice thereof to the defendant.”
The important question in this case, and the one most debated, is whether the plaintiff below was guilty of contributory negligence. It appears that upon the occasion when he was injured, he left his office on the second floor and went to the elevator and inquired of the boy operating it where he could find a hammer which he desired for opening a box of goods in his office. The boy stated to him that he could probably obtain a hammer from the janitor on the floor next below, and thereupon he went into the elevator and was taken by the boy down to the floor next below, to wit, the first floor of the building, and went to the room of the janitor, which was some seventy-five or eighty feet from the elevator, made known his wants to the janitor, was furnished with a hammer and came back to the elevator. The door was open, as I have [731] said, and supposing that the elevator cab was still there, and without stopping to make careful observation, he walked right in and fell down to the bottom, some fifteen or sixteen feet below, and was injured. It appears that the hallway was reasonably well lighted by the sun. This accident happened about three o’clock in the- afternoon, and there was no necessity for any artificial light in the hall, and customarily artificial lights were in the cabs. The plaintiff says there was no artificial light on this occasion, but we think the preponderance of the evidence establishes the fact that there was a light in the cab. This elevator shaft accommodated two elevators, running side by side and both opening out into the main hall. The one upon which plaintiff had come down one floor was the easterly elevator of the two; being one that was sometimes used for freight, it having a place below that where passengers ride, for the carriage of freight, although it was a regular passenger. elevator. The testimony convinces us that there were electric lights burning in both elevator cabs.
The question is, whether the plaintiff below was guilty of .negligence that will defeat his recovery because of his having failed to make such observation before he attempted to get into the cab as would have disclosed to him that there was no cab there — as would have disclosed to him that he was going to walk into a pit. Our attention is called to a number of cases decided by courts of last resort in different states, in some of .which it has been held that a person going to an elevator shaft where a door was open, and falling down, was negligent and could not recover, and some holding that it was not negligence, but the circumstances of each case differ from every other. It would be interesting to refer to those cases and discuss them somewhat, but for lack of time, it cannot be done by us today. As in other cases of negligence so in elevator cases, each case stands upon its own facts, and it seems to us that these cases cited to us were all correctly decided, and that they are not inconsistent with one another; though somewhat peculiar results seem to have been attained in Massachusetts, where there is in force a somewhat different rule of law as to the burden of proof or the method of presenting a ease than that generally prevailing upon the subject of contributory negligence. There it devolves upon the plaintiff to establish in the first instance that he was free from negligence, that he was not guilty of contributory negligence, and that, as I understand it, is by virtue of a statute of that state. It is apparent that if the plaintiff had made careful observation, he would have discovered that there was no elevator cab at this point at that time. The record discloses that the jury viewed the premises, and therefore we felt at liberty to view the [732] premises and did so. We discovered that the back part of the elevator shaft is plastered, and that it has a somewhat yellowish color, similar to the walls of this court room; that the shaft has for its front open iron work; that the doors are of somewhat the same character, and that the cab at the back is open iron work, so that one looks through this iron work and sees the yellow'back-ground of the plastered Avail at the bade part of the shaft, and our observation was that whether there were lights in the cab or not, it would not be apparent to one approaching the elevator to ride in the cab, that the cab was there or that the cab was absent, unless he made a somervhat careful observation. We came to this conclusion from the testimony. of the Avitnesses, as well as from our own observation, we; having made observations when the cabs were there and .also when the cabs were not there, and when they were lighted and also when they were not lighted. We are convinced by the testimony and by these observations that we felt at liberty to make, that one hurrying along about his business, with his mind somewhat preoccupied, his attention and his thought not drawn directly to the question whether there was an elevator cab present or not; making a casual or a hasty observation with the door open, Avould not readily observe the absence of the cab. If those cabs were made Avith solid backs, having a different color from the Avail of the shaft, for instance, the Avail being black and the back of the cab white, or vice versa, then it would be apparent in an instant. Upon the occasion of the accident, according to the evidence, the westerly cab Avas down and it had an electric light burning in it, ahd avc observed the situation there with that state of facts existing and our conclusion is the same upon that.
Now it does not appear from the authorities that one is required (one who has a fight to ride upon an eleA»ator) to make full, careful and attentive observation, but if he finds the door of the shaft leading to the cab, or Avhere the cab ought to be, open, he is at liberty to assume its presence and to rely to some extent at least, upon the cab being there. We are not prepared to say that one might walk blindly into a place of that kind without looking at all and yet be free from negligence, but if a hasty and cursory observation of the situation would lead one to suppose that the cab Avas there, we do not believe that, under the authorities, he would be chargeable with negligence if he proceeded upon that assumption. It is clear that that is what the defendant did here; he supposed the cab Avas there; he assumed that it was there; -he did this because of the door being open and because of the general appearance of things not attracting his attention to the fact that the cab was not there. Of course, if he had looked carefully doAvn toward the floor, he would [733] have observed that there was no floor there for him to step upon. And directly upon this subject is the case of Tousey v. Roberts, 114 N. Y. 312 [21 N. E. Rep. 399, 400], where it is held:
“An elevator for the carriage of persons, is not, like a rail-road crossing at a highway, supposed to be a place of danger, to be approached with great caution; but, on the coritrary, it may be assumed, when the door is thrown open by an attendant, to be a place which may be safely entered without stopping to look, listen, or make a special examination.”
}Ve think the court charged the jury very carefully as well as very fully in this case, and that the plaintiff in error had no right to complain of the charge. It is in some respects very favorable indeed, to the plaintiff in error. In our opinion the defendant in error was entitled, under the circumstances at the time, to the rule applicable to a passenger upon an elevator, lie having gone there for the purpose of taking-passage upon it as he had a right to do, and yet the court charged against him upon that proposition, and charged that the rule applying to a passenger was not applicable to that 'situation. The court charged the jury that he must exercise ordinary care in approaching the elevator to discover whether there was a cab there or not, notwithstanding the fact that the door was open; and we are hot prepared to say that the jury was wrong in finding that' he exercised ordinary care, nor can we say that, as a matter of law, he was guilty of contributory negligence, and therefore we feel obliged to affirm this judgment.