232 A.D. 155 | N.Y. App. Div. | 1931
Plaintiff, an insurance company, having issued its policy of workmen’s compensation insurance to the employer of Dougherty made payment to him of the award of compensation fixed by the State Labor Bureau for the injury which he claimed to have received through falling down an elevator shaft. This action is brought in its behalf under section 29 of the Workmen’s Compensation Law (as amd. by Laws of 1924, chap. 499), as assignee of his claim against defendants.
The trial court appears to have dismissed the complaint on the ground that, as a matter of law, Dougherty was guilty of contributory negligence. He had left the elevator on the ground floor with the door ajar, while taking a barrel from the car to a nearby ice box. This task occupied a very brief space of time and upon his return to
Under these circumstances, a case was made out for the jury. The judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.
Finch, P. J., Merrell, McAvoy and O’Malley, JJ., concur.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.