Viccica v. Mayflower Agency Co. 10 A.D.2d 822

Determination of the Appellate Term and the judgment of the City Court unanimously reversed on the fa rtfs and on the law, and a new trial *823ordered, with costs to appellant in this court and in the Appellate Term. This is an appeal from an affirmance by the Appellate Term of a judgment of the City Court, dismissing the complaint at the end of the plaintiff’s case. The plaintiff sought recovery for injuries she received as the result of being struck by1 the door of a freight elevator in a building where she was employed. The plaintiff was waiting with fellow employees to be carried from the fifteenth floor to ground level. In addition to common-law negligence, the plaintiff claimed that the defendant violated the Labor Law (§ 255), which requires elevators in factory buildings to be “ constructed, guarded, equipped, main-, tained and operated so as to be safe for all persons ”. There was no proof offered at the trial to establish that the building in question was a factory building within the Labor Law definition of such a structure. On that aspect of the case, therefore, the trial court was correct. However, on the question of common-law negligence, the proof raised the issues of negligence and contributory negligence sufficient to require their submission to the jury. It was error, therefore, to dismiss the complaint at the close of the plaintiff’s case. Concur — M. M. Frank, J. P., Valente, McNally, Stevens and Bergan, JJ.