Culver v. Gloo

Judgment unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: Plaintiff was entitled to have a jury pass upon the issues of defendant’s negligence, proximate cause and plaintiff’s freedom from contributory negligence. A jury might well find that defendant, acting as his own general contractor in over-all control of the project, had been guilty of a violation of rule 23-3.9 adopted by the Board of Standards and Appeals (12 NYCRR 23.3 [i]) pursuant to section 241 of .the Labor Law and that such violation was evidence of negligence. (Conte v. Large Scale Development Corp., 10 N Y 2d 20 .) It might also determine that the violation was a concurrent, proximate cause of plaintiff’s injuries. (Bergen v. East 84th St. Constr. Corp., 16 N Y 2d 644 ; Joyce v. Rumsey Realty Corp., 17 N Y 2d 118 .) Plaintiff’s continuation on the job after being instructed to work over the unguarded excavation did not constitute assumption of risk or contributory negligence as a matter of law when his only alternative was to abandon the work. (Kaplan v. 48th Ave. Corp., 267 App. Div. 272 , 274.) (Appeal from judgment of Herkimer Trial Term dismissing the complaint as to Theodore Gloo.) Present — Bastow, J. P., Henry, Del Vecchio and Marsh, JJ.