Bland v. Kaufman

249 A.D. 842, 292 N.Y.S. 597, 1937 N.Y. App. Div. LEXIS 9961

Opinion

Action to recover damages for personal injuries of the infant plaintiff and for expenses and loss of services by his father. Defendant Dickman maintained a low iron fence, with sharp pickets, outside a grass plot adjacent to his premises. This plot and the fence were within the public street. The plaintiff, moving along the sidewalk on roller skates, was crowded by another passerby and fell on these pickets and was seriously injured, if we take the view most favorable to the plaintiff, which we are required to do in view of the dismissal of the complaint. The action was brought on the theory that this fence constituted a public nuisance as a question of fact. We are of opinion that the evidence presented a question of fact both as to defendant Diekman and the defendant city. Judgment reversed on the law and a new trial granted, costs to appellant to abide the event. Carswell, Davis and Taylor, JJ., concur; Lazansky, P. J., concurs in the result, being of opinion that the fence was a nuisance as a matter of law as to both the owner of the adjoining premises and the city of New York; Adel, J., concurs in the result.