Ike Richling, Appellant, v. Rockwood & Company, Respondent

Ike Richling, Appellant, v. Rockwood & Company, Respondent. [MAJORITY] Action to recover damages for personal injuries suffered by plaintiff when he fell into an open and unguarded freight elevator shaft in defendant’s building. At the close of plaintiff’s case and again at the close of the entire case the court reserved decision on defendant’s motion to dismiss the complaint, and submitted the case to the jury, which rendered a verdict in favor of’ plaintiff. The court, which also reserved decision on defendant’s motion to set aside the verdict, subsequently set the verdict aside and granted the defendant’s motion to dismiss the complaint, made at the close of plaintiff’s case. Judgment dismissing the complaint' unanimously affirmed, with costs. While the evidence presented a question of fact as to the plaintiff’s contributory negligence, he was a mere licensee when he attempted to enter and use the elevator. Even considering plaintiff as an invitee or business visitor, defendant has failed in no duty owing to him as such. Appeal from order dismissed, without costs. Present — Lewis, P. J., Hagarty, Carswell, Johnston and Adel, JJ.