255 A.D. 832 | N.Y. App. Div. | 1938
Order unanimously affirmed, with costs and disbursements. It may well be that the jury was misled by the error of the court in charging, in effect, that the violation of the statute constituted only some evidence of negligence rather than “ negligence in itself.” (Martin v. Herzog, 228 N. Y. 164; Fluker v. Ziegele Brewing Co., 201 id. 40; Lynn v. Hewit Pharmacies, 234 App. Div. 805.) As said in Martin v. Herzog (supra): “ We must be on our guard, however, against confusing the question of negligence and that of causal connection between the negligence and the injury.” We are not bolding as a matter of law that the defendant did violate section 255 of the Labor Law, or that there was causal connection between such violation, if any, and the injury. Those are facts which should be determined by the jury upon the new trial. Present — Martin, P. J., OMalley, Glennon, Untermyer and Cohn, JJ.