Jolly v. Kelly

223 A.D. 783

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1928
• Status: Published

Opinion

Judgment reversed upon the law and the facts, with costs, and complaint dismissed, with costs. Plaintiff appreciated the danger when he took a position upon the platform which resulted in a part of his body protruding into the hoist shaft. He had watched the hoist for several minutes before the accident to determine for himself whether or not it was about to rise. He assumed his position without notice to the defendant’s signalman or the engineer, although it appears from the testimony that such a signal might have been given readily. Defendant’s failure to provide a guard between the top of the elevator and the platform was not the proximate cause of the accident, since the purpose of a guard is to protect those ignorant of the danger, or seeking to enter through inadvertence. (Lynch v. Elektron Mfg. Co., 195 N. Y. 171; Andersen v. Thompson-Starrett Co., 153 App. Div. 740; Kolacki v. American Sugar Refining Company, 173 id. 942.) In view of this disposition of the case, the appeal from the order denying defendant’s motion for a new trial is dismissed. Lazansky, P. J., Kapper, Hagarty and Seeger, JJ., concur; Cars-well, J., dissents.