Heyden v. Gallagher Elevator Co.

— Judgment unanimously affirmed, without costs. Memorandum: Plaintiff appeals from three judgments entered upon a jury verdict in favor of defendants. On February 28, 1975, plaintiff severed his right great toe when his foot was caught between a steel beam and *937 the platform of a lift conveyance he was riding at his place of employment. Plaintiff sued the designer, the installer and the architect of the conveyance and alleged that their failure to equip the conveyance with toe guards, interlocking gates and a constant pressure switch was the proximate cause of his injuries. Causes of action in negligence and strict products liability, based upon improper design, were submitted to the jury. Contributory negligence is a question of fact for the jury (Freidman v City of New York, 25 NY2d 764 ). A verdict was rendered in favor of each defendant based upon a finding that plaintiff was contributorily negligent. At the time of this accident, contributory negligence was a complete bar to recovery (CPLR 1411, L 1975, ch 69, eff Sept. 1, 1975). The trial court properly denied plaintiff the opportunity to examine his co-workers regarding the customary use of the conveyance because the only issue was whether plaintiff “independently exercised that degree of care for his own safety that a reasonably prudent person would have exercised under the same circumstances” {Codling v Paglia, 32 NY2d 330,344 ; emphasis supplied). The trial court also properly excluded evidence of postaccident modifications of the conveyance {Rainbow v Elia Bldg. Co., 79 AD2d 287 , affd 56 NY2d 550 ; Opera vHyva, Inc., 86 AD2d 373,375 ; cf. Caprarav Chrysler Corp., 52 NY2d 114 ). Finally, the trial court correctly refused to charge the jury on various sections of the Labor Law and industrial codes. Section 255 of the Labor Law and rule 8 of the New York State Industrial Code (12 NYCRR 8-1.12) apply only to owners and tenants {McRickard v Flint, 114 NY 222 ; see, also, Labor Law, § 316). The American Standard Safety Code for Elevators (ASSC) has never been adopted in New York State. (Appeal from judgment of Supreme Court, Erie County, Hannigan, J. — ne'gligence.) Present — Dillon, P. J., Hancock, Jr., Callahan, Denman and Green, JJ.