Bucciarelli v. Rinehart & Dennis Co.

172 A.D. 968, 156 N.Y.S. 1116

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1915
• Status: Published

Opinion

The evidence is confused, and some of the witnesses so changeful in their testimony as to awaken incredulity. But, unopposed, the evidence is not so utterly destitute of probable truth as to permit its rejection by the court. It tends to show, rather faintly, it is true, but sufficiently to demand submission to the jury, subject to review as to the weight of it, that the defendant’s servants had been using similar caps for blasting near the place of the accident, and had left the cap. Whether the defendant was negligent in such regard, whether such negligence was the proximate cause of the injury, and whether the plaintiff or his parents were guilty of contributory negligence, were questions for the jury to determine. Judgment of nonsuit reversed and new trial granted, costs to abide the event. Jenks, P. J., Thomas, Stapleton, Rich and Putnam, JJ., concurred.