Zucker v. Ephraim Realty Corp. , 243 A.D. 543 ( 1934 )

The action was to recover damages for personal injuries suffered by the infant plaintiff when he bent his head over the gate of an elevator shaft to call to the operator and was struck immediately by the car coming down, although, a short time before, the operator had answered his call and stated that he was coming up. There was no bell for signaling to the operator and it was necessary and customary for those desiring to use this freight elevator in the course of their business to go to the elevator door and shout to the operator in order to get service. The complaint was dismissed at the close of plaintiffs’ evidence on the ground that the infant plaintiff was guilty of contributory negligence as a matter of law, as against the infant plaintiff and the other plaintiff, his father, suing for loss of services. Judgment reversed on the law and a new trial granted, costs to appellants to abide the event, on the ground that the question of contributory negligence was one of fact. (Teich v. Seidman’s Garage, Inc., 188 N. Y. Supp. 488, not officially published; Hanson v. McGraw-Hill Co., Inc., 213 App. Div. 873; affd., 242 N. Y. 515.) Lazansky, P. J., Young, Carswell, Seudder and Davis, JJ., concur.