Powell v. George's Delivery Service

Concur — Stevens, J P., Eager, Tilzer and Babin, JJ.; Capozzoli, J., dissents in the following memorandum: The testimony of the plaintiff concerning his conversation with the defendant, as to why the latter took the elevator and why he failed to leave someone at the door, or put up a sign, was sufficient to raise issues of fact as to whether the defendant did operate the elevator and whether, in so doing, he exercised reasonable care. Further, the question of contributory negligence was for the jury, in view of the peculiar physical construction of the elevator, which, under the circumstances disclosed in the record, required one to enter the elevator in order to turn on the light switch. The failure of the trial court to allow this ease to go to the jury was error and I, therefore, vote to reverse and remand for a new trial.