Doremus v. Auerbach

Headnote

Doremus v. Auerbach, 176 App. Div. 512 , affirmed.

Appeal from a judgment entered March 3, 1917, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to" recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendants. The deceased was a mechanical draftsman employed by the Otis Elevator Company. It had a contract with the defendants Auerbach to install elevators in a building under construction. The deceased was sent to these premises by the mechanical engineer of the Otis Elevator Company to verify some measurements for the overhead supports which required him to go to the roof. It was the first time he had been sent to that building. There were no witnesses to the accident. The deceased was found while still alive directly below an open landing in a stairway. His death was due to a fractured skull. It was claimed that deceased entered the building by the main entrance, started to go up the only stairway which appeared to be and was in general use by the workmen in going between floors and fell to his death through the open landing. The Appellate Division held that there was no evidence that defend

ants failed in any duty that they owed to the intestate and that if there was any negligence in the case it was that of the deceased, who, if he did ascend the stairway, did so in face of the obvious fact that it was uncompleted, and that it was badly lighted.