A. M. Rothschild & Co. v. Levy

In each count of the declaration it is averred that plaintiff’s intestate attempted to get on the elevator while it was stopped. This is a material allegation, and, in view of the pleadings, proo'f thereof is necessary to a recovery, and so the court, in effect, instructed the jury. There is no conflict between the testimony of the only two witnesses of the-accident, as to whether the deceased attempted to get on the elevator while it was in motion, ascending from the fifth to the sixth floor of the building. Miss Alder, whose deposition was taken by the plaintiff, testified, as shown in the…