Opinion
June 4, 1951.
Action by plaintiff wife for damages for personal injuries as a consequence of falling down an elevator shaft in the apartment house of the defendant Beltway Realty Corp. and by her husband for loss of services and for medical expenses. Judgment, insofar as appealed from, dismissing the complaint at the close of the plaintiffs' case on the theory that plaintiff wife was guilty of negligence as a matter of law, reversed on the law and a new trial granted, with costs to abide the event. Whether or not plaintiff wife was contributorily negligent was a question of fact and not one of law. Plaintiff wife's proof established prima facie that respondent was negligent as a consequence of the violation of the ordinance. ( Beinhocker v. Barnes Development Corp., 296 N.Y. 925; Gustavson v. Thomas, 227 App. Div. 303; Administrative Code of City of New York, § C26-1171.0.) Nolan, P.J., Carswell, Adel, Sneed and MacCrate, JJ., concur.