Caminiti v. Matthews Construction Co.

241 A.D. 879

Opinion

Judgment dismissing plaintiff’s complaint reversed on the law and the facts and a new trial granted, costs to appellant to abide the event. We are of opinion that plaintiff established a prima facie ease of negligence against both defendants, the proof showing that the falling object came from above where plaintiff was working and where alone the employees of defendant Lieder Construction Co., Inc., were engaged, and that the spaces on all of the floors above the sixth floor to the tenth, where the iron workers were engaged, were open and unprotected in violation of the Labor Law (§ 241, subd. 4) and section 195 of the Building Code of the city of New York, the duty of seeing that such protection was afforded being upon the general contractor, defendant Matthews Construction Co., Inc. We are of the further opinion that despite the fact that plaintiff appeared to have had some prior accidents of a character similar to the one now complained of, the question of his credibility and the extent of his injury, if any, was one of fact and not of law. Lazansky, P. J., Rapper, Carswell, Scudder and Tompkins, JJ., concur.