56 A.D.2d 647 | N.Y. App. Div. | 1977
In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered April 23, 1973, which is in favor of respondents, upon the trial court’s grant of their motion to set aside the jury verdict in favor of plaintiff and to dismiss the complaint, after a trial limited to the issue of liability only. Judgment reversed, with costs to plaintiff, payable by respondents; respondents’ motion denied, jury verdict reinstated, and action remanded to Trial Term for further proceedings not inconsistent herewith. Plaintiff, an employee of United Fabricated Metal Products, Inc., a subcontractor, was injured while working at the bottom of an elevator shaft in the respondents’ building when he was struck by a descending elevator. The proof in the record establishes that one Torres, the superintendent of the building, had possession of the key with which to turn off the power in the elevator. Nevertheless, he relied on the assurances of plaintiff’s foreman that the latter would hold the door of the elevator open to keep it from moving. Though the plaintiff’s foreman was negligent in failing to keep the elevator door open, the superintendent was also negligent in failing to switch the power off. Hence, the case falls into the category of concurrent negligence of
