Benda v. Keil

31 Misc. 812, 63 N.Y.S. 971

• Court: City of New York Municipal Court
• Decided: April 15, 1900
• Status: Published

Opinion

Hascall, J.

It seems to me that the verdict was clearly against the weight of evidence in this case, and that the jury arrived at its conclusion on the theory that there was some evidence to support the claim of plaintiff, and would, therefore, be justified in expressing a sympathetic feeling for him. This, of course, could not uphold such a determination. Baulec v. N. Y. & H. R. R. Co., 59 N. Y. 366.

If any danger existed in the occupation of the injured person, he knew of it, and assumed the risk that was apparent. The testimony shows that he, best of all, was acquainted with the exact condition of his surroundings, and, if the conditions were as plaintiff contends, was certainly careless in his operations. Crown v. Orr, 140 N. Y. 452.

Judgment and order reversed and a new trial ordered, with costs to abide the event.

McCarthy, J., concurs.

Judgment and order reversed and new trial ordered, with costs to abide event.