Opinion
April 1, 1965
Appeal from the Onondaga Trial Term.
Present — Williams, P.J., Bastow, Goldman and Henry, JJ.
Judgment unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: Appellant was injured while on premises on which he was to perform services for a subcontractor after the arrival of certain materials on the job site. He contends that he was lawfully upon the premises as an invitee and that defendant, therefore, owed him the duty to have covered an open trench into which he fell. The trial court granted respondent's motion for a nonsuit at the close of all of the evidence on the grounds that appellant "was not lawfully on the premises" and that, furthermore, he "was guilty of contributory negligence as a matter of law". There is sufficient proof in this record to have required submission to the jury of the questions of appellant's status and contributory negligence. Appellant was entitled to every reasonable inference which could be drawn from the evidence including the question of credibility, which the court in his statement on the granting of the nonsuit indicated he decided adversely to appellant. ( Bowers v. City Bank Farmers Trust Co., 282 N.Y. 442, 444, 445; cf. Knapp v. Fulton County Nat. Bank Trust Co. of Gloversville, 6 A.D.2d 742.) The refusal of the trial court to have submitted the case to the jury for its resolution makes a new trial necessary.