Bunce v. City of New York

Appellate Division of the Supreme Court of New York

Bunce v. City of New York

261 A.D. 838, 24 N.Y.S.2d 930, 1941 N.Y. App. Div. LEXIS 7708

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

DecidedJanuary 27, 1941

StatusPublished

Cited by3 cases

This text of 261 A.D. 838 (Bunce 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

Bunce v. City of New York, 261 A.D. 838, 24 N.Y.S.2d 930, 1941 N.Y. App. Div. LEXIS 7708 (N.Y. Ct. App. 1941).

Pincite

Opinion

Action for damages for personal injuries suffered by plaintiff as a consequence of falling at a ledge on a sidewalk adjacent to a building. Judgment for the defendant reversed on the law and the facts and a new trial granted, with costs to abide the event. The court erred in its charge to the plaintiff’s prejudice. It interjected into the jury’s deliberations a question of whether or not plaintiff fell because of a foreign substance, although there was no evidence of a foreign substance. It charged the jury that the verdict must be for the defendant if the jury “ are [839]*839left in doubt as to the liability of the City or the right of the plaintiff here to recover * * This error was not corrected by the charge that the plaintiff was only obligated to prove her case by a fair preponderance of the evidence. The frequent reference to “ doubt ” tended to confuse the jury, as a doubt might persist in the mind of a trier of a disputed question of fact, that is, co-exist with a finding that the plaintiff had sustained the burden resting on her by a fair preponderance of evidence. The court also erred in declaring, “ I think she left us in some doubt as to what was under the shoe,” as well as in its refusal to charge that a person “ is not obliged at all times to keep in mind a defect on the highway ” which the person may have observed or of which she may have known. Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.

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Action for damages for personal injuries suffered by plaintiff as a consequence of falling at a ledge on a sidewalk adjacent to a building. Judgment for the defendant reversed on the law and the facts and a new trial granted, with costs to abide the event. The court erred in its charge to the plaintiff’s prejudice. It interjected into the jury’s deliberations a question of whether or not plaintiff fell because of a foreign substance, although there was no evidence of a foreign substance. It charged the jury that the verdict must be for the defendant if the jury “ are [839]*839left in doubt as to the liability of the City or the right of the plaintiff here to recover * * This error was not corrected by the charge that the plaintiff was only obligated to prove her case by a fair preponderance of the evidence. The frequent reference to “ doubt ” tended to confuse the jury, as a doubt might persist in the mind of a trier of a disputed question of fact, that is, co-exist with a finding that the plaintiff had sustained the burden resting on her by a fair preponderance of evidence. The court also erred in declaring, “ I think she left us in some doubt as to what was under the shoe,” as well as in its refusal to charge that a person “ is not obliged at all times to keep in mind a defect on the highway ” which the person may have observed or of which she may have known. Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.

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Bluebook (online)

261 A.D. 838, 24 N.Y.S.2d 930, 1941 N.Y. App. Div. LEXIS 7708, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bunce-v-city-of-new-york-nyappdiv-1941.

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