Kehoe v. Stern

Appellate Terms of the Supreme Court of New York

Kehoe v. Stern

114 N.Y.S. 14

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 7, 1909

StatusPublished

This text of 114 N.Y.S. 14 (Kehoe v. Stern) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Kehoe v. Stern, 114 N.Y.S. 14 (N.Y. Ct. App. 1909).

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FORD, J.

Plaintiff respondent, a cook in defendant’s family for two days before the accident, opened a door leading into an open elevator shaft, fell into it, and received injuries, on account of which she recovered judgment. She mistook the elevator door for that of the storeroom, which was next to it; both opening off a common hallway.

[15]*15Without passing upon the question of the defendant’s negligence— and it is doubtful whether any has been shown—plaintiff failed to show freedom from contributory negligence. She did not know of the existence of the elevator shaft; but, even if she did, such knowledge would not have prevented the accident, because she did not intentionally open the elevator door, but supposed she was opening the door of the storeroom. So warning or knowledge of the existence of the elevator shaft has nothing to do with the case. If there was clear light in the hall, there would be no doubt of her contributory negligence. But there is some testimony as to the" absence of light. The darker it was, the more cautious she should have been. It is well settled that one who gropes about in a dark place, opens a wrong door, and through such mistake receives injury, may not recover. Piper v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 224, 50 N. E. 851, 41 L. R. A. 724, 66 Am. St. Rep.. 560; Hilsenbeck v. Guhring, 131 N. Y. 674, 30 N. E. 580; Dailey v. Distler, 115 App. Div. 102, 100 N. Y. Supp. 679; Gaffney v. Brown, 150 Mass. 479, 23 N. E. 233.

The judgment appealed from should be reversed, and a new trial ordered, with costs to appellant to abide the event.

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FORD, J.

Plaintiff respondent, a cook in defendant’s family for two days before the accident, opened a door leading into an open elevator shaft, fell into it, and received injuries, on account of which she recovered judgment. She mistook the elevator door for that of the storeroom, which was next to it; both opening off a common hallway.

[15]*15Without passing upon the question of the defendant’s negligence— and it is doubtful whether any has been shown—plaintiff failed to show freedom from contributory negligence. She did not know of the existence of the elevator shaft; but, even if she did, such knowledge would not have prevented the accident, because she did not intentionally open the elevator door, but supposed she was opening the door of the storeroom. So warning or knowledge of the existence of the elevator shaft has nothing to do with the case. If there was clear light in the hall, there would be no doubt of her contributory negligence. But there is some testimony as to the" absence of light. The darker it was, the more cautious she should have been. It is well settled that one who gropes about in a dark place, opens a wrong door, and through such mistake receives injury, may not recover. Piper v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 224, 50 N. E. 851, 41 L. R. A. 724, 66 Am. St. Rep.. 560; Hilsenbeck v. Guhring, 131 N. Y. 674, 30 N. E. 580; Dailey v. Distler, 115 App. Div. 102, 100 N. Y. Supp. 679; Gaffney v. Brown, 150 Mass. 479, 23 N. E. 233.

The judgment appealed from should be reversed, and a new trial ordered, with costs to appellant to abide the event.

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114 N.Y.S. 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kehoe-v-stern-nyappterm-1909.

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