Opinion
May 25, 1983
Appeal from the Supreme Court, Erie County, Hannigan, J.
Present — Dillon, P.J., Hancock, Jr., Callahan, Denman and Green, JJ.
Judgment unanimously affirmed, without costs. Memorandum: Plaintiff appeals from three judgments entered upon a jury verdict in favor of defendants. On February 28, 1975, plaintiff severed his right great toe when his foot was caught between a steel beam and the platform of a lift conveyance he was riding at his place of employment. Plaintiff sued the designer, the installer and the architect of the conveyance and alleged that their failure to equip the conveyance with toe guards, interlocking gates and a constant pressure switch was the proximate cause of his injuries. Causes of action in negligence and strict products liability, based upon improper design, were submitted to the jury. Contributory negligence is a question of fact for the jury ( Freidman v City of New York, 25 N.Y.2d 764). A verdict was rendered in favor of each defendant based upon a finding that plaintiff was contributorily negligent. At the time of this accident, contributory negligence was a complete bar to recovery (CPLR 1411, L 1975, ch 69, eff Sept. 1, 1975). The trial court properly denied plaintiff the opportunity to examine his co-workers regarding the customary use of the conveyance because the only issue was whether plaintiff " independently exercised that degree of care for his own safety that a reasonably prudent person would have exercised under the same circumstances" ( Codling v Paglia, 32 N.Y.2d 330, 344; emphasis supplied). The trial court also properly excluded evidence of postaccident modifications of the conveyance ( Rainbow v Elia Bldg. Co., 79 A.D.2d 287, affd 56 N.Y.2d 550; Opera v Hyva, Inc., 86 A.D.2d 373, 375; cf. Caprara v Chrysler Corp., 52 N.Y.2d 114). Finally, the trial court correctly refused to charge the jury on various sections of the Labor Law and industrial codes. Section 255 Lab. of the Labor Law and rule 8 of the New York State Industrial Code ( 12 NYCRR 8-1.12) apply only to owners and tenants ( McRickard v Flint, 114 N.Y. 222; see, also, Labor Law, § 316). The American Standard Safety Code for Elevators (ASSC) has never been adopted in New York State.