De Agramonte v. City of Mount Vernon

123 A.D. 717, 108 N.Y.S. 236, 1908 N.Y. App. Div. LEXIS 171

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 1908
• Status: Published

Opinion

Gaynor, J.:

We reversed a former judgment for the plaintiff (112 App. Div. 291). This time the case went to the jury on the question whether it was not negligence in the city to allow the-display of the fireworks . in the public park so close to the street where the plaintiff was hit by the fragment of the steel pipe of a bomb which prematurely exploded. She was not a spectator of the exhibition, which Was given by a private .society under a license from the mayor authorized by an ordinance of the common council, and under the superintendence of police officers sent; there, for that purpose, but a passer by. The oral evidence is surprisingly meagre in respect of the distance of the spot where, the fireworks were set and exploded from the street, which was the pivotal point -of the ’ case. But it was somewhere about the middle of the park; and by dint of scrutinizing a poor map of the'park which got in evidence, it is. found to be 450 feet long on the side where the plaintiff was, about 350 feet on the opposite.side, and about 420 feet the other way. It thus appears that the said spot was about 210 feet or less from the' plaintiff. This made the case one of fact for the jury, i. e., whether the spot was so close to the street as to make the exhibition dangerous to persons thereon (Walker v. City of New York, 107 App. Div. 351).

The judgment and order should be affirmed,

Present—Woodward, Jerks, Hooker, Gayror and Miller^ JJ.

Judgment and order unanimously affirmed, with costs.