Roth v. Mitteldorf , 248 A.D. 608 ( 1936 )

Judgment reversed on the law and the facts and a new trial granted, with costs to appellants to abide the event. We are of opinion that the verdict is against the weight of the credible evidence. To recover in this action under the law of the case, it was necessary for the plaintiff to prove that defendant Leo Mitteldorf directed him to do the precise thing which resulted in his injuries, that is, to use the extension ladder of the fire escape which was suspended between the second and third floors on the fire escape structure and intended for use only when lowered to the ground, thus extending and completing the fire escape to the ground. Plaintiff testified that he was told to “go up on the fire escape ladder,” which perhaps may be construed as a sufficient specific direction to use the extension ladder. However, he further testified that he was told to take the stepladder “ and go up on the fire escape and loosen the hook and to send down the fire escape ladder and I should climb around.” Had he followed the directions to which he last testified, he would have gone to the extension roof immediately beneath the fire escape, on which he had worked the previous day, and from there reached a position on the fire escape to lower the extension ladder without using the extension ladder for the purpose of mounting the fire escape. Lazansky, P. J., Young, Hagarty, Carswell and Taylor, JJ., concur.