Opinion
April, 1925.
Present — Kelly, P.J., Rich, Jaycox, Kelby and Young, JJ.
Judgment and order reversed on the law, and the verdict of the jury unanimously reinstated, with costs to the appellant. The learned trial justice set aside the verdict in favor of the plaintiff solely on the ground that the plaintiff was guilty of contributory negligence as a matter of law. We are of the opinion that the trial justice was correct in the first instance in leaving the question of contributory negligence to the jury as a question of fact. We are in accord with the reasoning in Teich v. Seidman's Garage (188 N.Y. Supp. 488). The cases cited by the learned trial justice all relate to accidents where the plaintiff was struck by a descending elevator after he had wholly or partly entered an elevator shaft.