Beatrice v. City of New York

Appellate Division of the Supreme Court of New York

Beatrice v. City of New York

260 A.D. 7, 20 N.Y.S.2d 793, 1940 N.Y. App. Div. LEXIS 4513

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 19, 1940

StatusPublished

This text of 260 A.D. 7 (Beatrice v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Beatrice v. City of New York, 260 A.D. 7, 20 N.Y.S.2d 793, 1940 N.Y. App. Div. LEXIS 4513 (N.Y. Ct. App. 1940).

Pincite

Opinion

Per Curiam.

The plaintiff wife was not guilty of contributory negligence as matter of law in failing to observe the towing handle of the concrete mixer under the circumstances of the present case. The jury could have found that there was no reason to anticipate such an obstruction on a boardwalk which had been opened to the public. According to the plaintiff’s evidence the towing handle remained across the boardwalk for a period of three hours before the accident. There was evidence, also, that several park attendants who were in a position to have observed this condition failed to take action to protect the public against the danger. Upon these facts the jury would have been justified in holding the city to be Hable.

We think the complaint was properly dismissed against the defendant Jackson Construction Corporation upon the ground that it affirmatively appeared from the plaintiff’s case that its employee had left the towing handle in an upright position when last he had ceased work.

The judgment in favor of the city of New York should be reversed and a new trial granted, with costs to the appellants to abide the event, the action severed and judgment dismissing the complaint as against the defendant Jackson Construction Corporation affirmed, with costs to said defendant.

Present — Martin, P. J., Glennon, Untermyer, Cohn and Callahan, JJ.; Martin, P. J., dissents and votes to affirm the judgment as entered.

Judgment in favor of the city of New York reversed and a new trial ordered, with costs to the appellants to abide the event, the action severed and judgment dismissing the complaint as against the defendant Jackson Construction Corporation affirmed, with costs to said defendant.

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Per Curiam.

The plaintiff wife was not guilty of contributory negligence as matter of law in failing to observe the towing handle of the concrete mixer under the circumstances of the present case. The jury could have found that there was no reason to anticipate such an obstruction on a boardwalk which had been opened to the public. According to the plaintiff’s evidence the towing handle remained across the boardwalk for a period of three hours before the accident. There was evidence, also, that several park attendants who were in a position to have observed this condition failed to take action to protect the public against the danger. Upon these facts the jury would have been justified in holding the city to be Hable.

We think the complaint was properly dismissed against the defendant Jackson Construction Corporation upon the ground that it affirmatively appeared from the plaintiff’s case that its employee had left the towing handle in an upright position when last he had ceased work.

The judgment in favor of the city of New York should be reversed and a new trial granted, with costs to the appellants to abide the event, the action severed and judgment dismissing the complaint as against the defendant Jackson Construction Corporation affirmed, with costs to said defendant.

Present — Martin, P. J., Glennon, Untermyer, Cohn and Callahan, JJ.; Martin, P. J., dissents and votes to affirm the judgment as entered.

Judgment in favor of the city of New York reversed and a new trial ordered, with costs to the appellants to abide the event, the action severed and judgment dismissing the complaint as against the defendant Jackson Construction Corporation affirmed, with costs to said defendant.

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Bluebook (online)

260 A.D. 7, 20 N.Y.S.2d 793, 1940 N.Y. App. Div. LEXIS 4513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beatrice-v-city-of-new-york-nyappdiv-1940.