I am of the opinion that respondent's evidence shows that he was guilty of contributory negligence. I quote, briefly, from his own testimony:
"Q. What next did you do after you saw the doors were open? A. Well, I suppose I stepped through them. I imagine that would be the next thing. Q. You stepped right into the entrance? A. Yes. Q. Where was the elevator then? A. I don't know. Q. Did you look to see? A. No; I did not."
At another place in the transcript of his evidence, I find the following:
"Q. When you walk up to an elevator do you not look to see what you are going to step on before you step into an elevator shaft — do you not do that any time you get into any elevator? A. Not if the doors are open and the elevator appears to be there I don't bother to look at the floor — I step on. Q. A freight elevator where you know there is no operator, you do that? A. Yes."
In dealing with the matter of contributory negligence, the majority points out that this court has heretofore quoted, with approval, the following excerpt from a New York case, Tousey v.Roberts, 114 N.Y. 312, 21 N.E. 399, 11 Am. St. 655:
"An elevator for the carriage of persons is not, like a railroad crossing at a highway, supposed to be a place of danger, to be approached with great caution; but, on the contrary, it may be assumed, when the door is thrown open by an attendant, to be a place which *Page 447 may be safely entered without stopping to look, listen or make a special examination."
In leading up to the quotation, this court said (Perrault v.Emporium Department Store Co., 71 Wash. 523, 527,128 P. 1049):
"In Tousey v. Roberts, the plaintiff entered a hallway from the street, walked towards the elevator, and as she approached it the door was thrown open."
It will be noted from the above quotations that the New York case was specifically concerned with an elevator for the carriage of persons, and that an attendant threw the door open as plaintiff approached it. The wide factual differences between that case and this are so glaringly apparent as not to require elaboration.
It seems to be contended, however, that, since the freight elevator opening was through the east side wall of the building, and, therefore, in the afternoon shadow of the building, the jury was entitled to infer that, even if the respondent had looked, he could not have seen whether the elevator was there or not; and hence, even if it was negligence not to look, such negligence would not be a contributing cause of his injury.
The opening in the wall was at least six feet wide, and the alley pavement extended into it a scant fourteen inches to the place where the elevator floor and pavement met. The whole construction, therefore, was virtually out in the open. As the accident happened on a bright, clear, sunny August day, fifty-four minutes before sunset, there is, in my opinion, no room whatsoever for an inference that it was so dark in that alley that the respondent, if he had looked, could not have readily seen that the elevator was not there. Nor is there anything in the record to indicate that the jury drew such an inference. It is infinitely more reasonable to suppose that it simply agreed with the respondent *Page 448 that one is entitled to step into any open elevator shaft without looking. At any rate, the majority opinion will inevitably be cited as supporting that proposition. It may be that this should be the rule, but I am not yet convinced that it should.
I therefore dissent.
SIMPSON, J., concurs with ROBINSON, J.