# Kaminsky v. Arthur Rubloff & Co. > Appellate Court of Illinois · June 17, 1966 · 72 Ill. App. 2d 68 URL: https://www.frixlaw.com/law-library/cases/9540340 ## Case - **Full name:** J. David Kaminsky, Plaintiff-Appellee, v. Arthur Rubloff & Company, Defendant-Appellant - **Court:** Appellate Court of Illinois - **Decided:** June 17, 1966 - **Citations:** 72 Ill. App. 2d 68; 218 N.E.2d 860; 1966 Ill. App. LEXIS 850 - **Precedential status:** Published - **Opinion:** Dissent by English - **Judges:** Drucker, English - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9540340 ## Opinion text ENGLISH, J., dissenting. Regardless of plaintiff’s understanding (obviously mistaken) that when the indicator light was out the elevator cab would be at the lobby floor, it was nevertheless his duty to exercise ordinary care in opening the door and entering the elevator shaft. Plaintiff testified that at the time in question he was returning from a company Christmas party; that he did not know whether the elevator was present at the lobby floor; that he knew the elevator was quite frequently used after hours by “the people at the Pierce Electric Company” on another upper floor; that he did not look through the window of the elevator door 1 to see if the elevator cab was there; that upon opening the door he did not look to see if the elevator cab was there. He also testified that he did not feel with his hand or foot or do anything by way of testing to see if the elevator was there; that he had never done that. Nor did he attempt, before entering, to turn on the elevator cab light, the switch for which was on the inside of the front side of the cab about 30 inches from the door. (Plaintiff also testified that on prior occasions after business hours this light inside the elevator had never been on, and that he would always turn it on.) The testimony of plaintiff shows that he simply inserted the “key” into the half-inch (or smaller) hole in the elevator door, slid the door open, and, while facing and looking “straight ahead,” stepped forward into darkness, and fell down the elevator shaft. I am not impressed by the fact that on this occasion plaintiff may have followed the same routine he had employed hundreds of times before without injury. There is no prescriptive right in negligent conduct, and the standard of ordinary care was still applicable at the time of plaintiff’s injury. Surely, if plaintiff, relying as he claims he was on his past experience, had entered the elevator shaft with his eyes closed, it could not reasonably be said that he was exercising due care. I see no essential difference between the facts of such a hypothesis and those of the instant case. In my opinion the acts of plaintiff, taken in the light most favorable to him, constitute a clear case of contributory negligence as a matter of law. As to the authorities relied on by the majority, I do not consider the 1908 New York decision to be in point, nor greatly persuasive. More or less the same may be said of the 1913 Indiana case and the more recent Iowa decision. In all three of these cases the elevator doors were standing open and this fact was held to be the equivalent of an invitation to enter. As stated by the Iowa court: Another fact which courts have uniformly construed favorably to plaintiff on the issue of contributory negligence in cases of this kind is that the door of the elevator was open. It has been considered as an important factor in the affirmance of judgments for plaintiff and of requiring a submission of plaintiff’s negligence to the jury. A closed or partly closed elevator door is construed as a warning or a notice to investigate. But an open elevator door is uniformly regarded as an invitation to enter. (Emphasis supplied.) Hull v. Bishop-Stoddard Cafeteria (Iowa), 26 NW2d 429, 450 (1947). On the other hand, I do consider the opinion in Johnson v. Vass, 32 Ill App2d 113, 177 NE2d 28 , to be remarkably close to the facts of the instant case and very persuasive in its treatment of the whole subject matter and in the numerous authorities cited. I agree with the majority that the judgment in favor of plaintiff should be reversed, but, rather than remand the case for a new trial, I would enter judgment here in favor of defendant. The bottom of the window was 68 inches above the lobby floor. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9540340. Public record. Not legal advice.