
    Joseph Hughes, Respondent, v Alvord and Swift et al., Defendants, and Diesel Construction Company, Appellant.
   Interlocutory judgment of liability in favor of plaintiff-respondent by order of the trial court, Supreme Court, New York County, entered October 22, 1975, unanimously reversed, on the law, and the case remanded for a new trial, with $60 costs and disbursements of this appeal to abide the event. The action of the court in taking the case from the jury was improvident in the presence of issues of fact concerning the claim made against defendant-appellant that it failed to provide safe working conditions (Labor Law, § 240), as the result of which plaintiff-respondent was injured. Plaintiff’s expert was permitted to testify concerning a locking device he never saw; the workman who had knowledge of whether the device had been locked was never called to testify; and it was at least doubtful whether any rule of safety required rails on all four sides of the scaffold from which plaintiff fell. These developments during the trial are illustrative of the numerous issues of fact implicit in the evidence, and which should have barred a conclusion by the court that the evidence obviated the possibility of a defendant’s verdict. The case should have gone to the jury. Settle order on notice. Concur—Markewich, J. P., Murphy, Birns, Silverman and Capozzoli, JJ.  