Opinion
April 4, 1952.
Appeal from the Circuit Court, Dade County, Grady L. Crawford, J.
Nat L. Williams, Miami, for appellant.
Dixon, DeJarnette Bradford and James A. Dixon, all of Miami, for appellee.
This suit is a tort action for personal injuries received by the appellant as a result of an accident in an elevator in a building owned by the appellee. To the complaint the appellee filed answer, raised the general issue denying negligence on the part of the appellee and further alleged contributory negligence on the part of the appellant as follows:
"Further answering said complaint this defendant avers that if the condition as described therein in fact existed, it was open and obvious and the plaintiff was under a duty to observe the same and failed to exercise reasonable care when entering the elevator, thus contributing to his fall, and having been guilty of contributory negligence is barred from recovering."
At the conclusion of the appellant's case the appellee filed a motion for directed verdict which was granted by the trial Judge. Judgment was entered upon this verdict and the appeal is from that judgment, alleging as error the entry of the judgment and the granting of the motion by the Court for an instructed verdict.
The issues are simple. The appellee owns a building in the City of Miami containing several stories and there is an old-type elevator in the building to transport tenants and others to and from the various floors of the building. This elevator was not of the modern type where tenants and others may push a button to put the elevator in use and then operate the same to or from the desired floor. It is a type which requires an attendant or an operator. The undisputed testimony is that this elevator was operated by a young woman about 18 years of age; she was known to the appellant and to his two companions who were with him on the occasion of the accident; they not only knew her but knew that she was the elevator operator.
On the morning of October 24, 1949, at about eight o'clock, the appellant with two friends, who were employees of the same firm for which the appellant worked, entered the lobby of this building going to work. They intended to use the elevator to go to the floor of the building where their offices were located.
Each of the three men noticed that the elevator operator, who was a good-looking girl, was playing a pinball machine in the lobby, between 10 and 12 feet away from the door of the elevator; the appellant entered the elevator without looking, caught his foot on the elevator, fell and was injured; the elevator was between three and four inches above the floor of the lobby and this fact was not known to the appellant; the appellant testified:
"I noticed right away when we were walking towards the elevator that she was over toward the pinball machine, which is about 10 feet away from the open door of the elevator."
One of the companions of the appellant, Mr. Richards, testified that he did not see the elevator raised above the level of the floor and that he was not looking at the elevator, but when he came in the lobby, he saw the girl playing the pinball machine and was looking at her; all three men testified they were looking at the girl.
The appellant testified very positively on cross-examination that he did not look down at the floor as he stepped into, or entered, the elevator, and further, that he did not look at the floor or the edge of the elevator at all; the appellant had been working in this same building for many months; he used the elevator every day; he knew the kind of elevator it was; he knew the girl and that she was the operator of the elevator; he knew that she was not in the elevator but that she was at least 10 feet away playing a pinball machine, and he was looking at the girl and not at the floor or edge of the elevator as he entered it.
The appellant strongly urges that the Court committed error in directing a verdict and cites all of the adjudicated cases from this court holding that a verdict should be directed for one party only when the evidence is legally insufficient to sustain a verdict for the opposite party, or where evidence is conflicting on a material fact, or will admit of different reasonable inferences by reasonable men.
In this case the evidence was legally insufficient to sustain a verdict for the appellant; there was no conflict in the evidence; and there was no basis in the evidence for different reasonable inferences. On the other hand, the undisputed testimony of the appellant and that offered by his witnesses without any conflict whatsoever showed that the appellant went into this place, with which he was familiar, seeing the elevator door open with the known attendant, or operator, not in the elevator; he saw her at least 10 feet away playing a pinball machine, and without looking at the floor or the edge of the elevator, walked into the same, stumbled, fell and was injured.
When the appellant saw this pretty girl, the elevator operator, was not in the elevator but was at least 10 feet away playing a pinball machine, he was put upon notice that the elevator was not ready for operation until the girl stopped playing the pinball machine and went to her place preparatory to the operation of the elevator. He was under a higher duty to take precautions for his own safety in walking into an unattended elevator than he would have been walking into one with the attendant in the elevator ready for operation.
Under this undisputed testimony without conflict, the appellant proved the defense of contributory negligence filed by the appellee.
We find no error in the record. See Matson v. Tip Top Grocery, 151 Fla. 247, 9 So.2d 366; Clyde Bar v. McClamma, 152 Fla. 118, 10 So.2d 916; Miller v. Shull, Fla., 48 So.2d 521; Kraver v. Edelson, Fla., 55 So.2d 179.
Affirmed.
SEBRING, C.J., and CHAPMAN and ROBERTS, JJ., concur.