De Gaetano v. Merritt & Chapman Derrick & Wrecking Co.

Appellate Division of the Supreme Court of New York

De Gaetano v. Merritt & Chapman Derrick & Wrecking Co.

219 A.D. 242, 219 N.Y.S. 689, 1927 N.Y. App. Div. LEXIS 10887

Appellate Division of the Supreme Court of the State of New York·Decided February 4, 1927·Published

Opinions

Per Curiam.

The respondent urges only two claims of negligence to sustain the verdict: neglect to provide a second diver in attendance, and neglect properly to protect the end of the cable.

The .decedent was aware that no other diver was in attendance. An experienced diver himself, he had peculiar knowledge of any risk incident to this omission. He, therefore, assumed this risk.

The record is bare of any evidence that loose wires dangerously protruded from the end of the cable. The witness alone relied on by respondent testified that while there were loose ends of wire, he did not know whether they stuck out several inches. This extent of protrusion was necessary to the plaintiff’s case. His testimony in this respect is completely overborne by the testimony of defendant’s witnesses and the photograph showing the manner in which the end of the cable was protected.

The judgment appealed from should be reversed, with costs, on the law and the facts, and the complaint dismissed, with costs.

Present — Dowling, P. J., Merrell, Finch, McAvot and Proskauer, JJ.; Merrell, J., dissents.

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Per Curiam.

The respondent urges only two claims of negligence to sustain the verdict: neglect to provide a second diver in attendance, and neglect properly to protect the end of the cable.

The .decedent was aware that no other diver was in attendance. An experienced diver himself, he had peculiar knowledge of any risk incident to this omission. He, therefore, assumed this risk.

The record is bare of any evidence that loose wires dangerously protruded from the end of the cable. The witness alone relied on by respondent testified that while there were loose ends of wire, he did not know whether they stuck out several inches. This extent of protrusion was necessary to the plaintiff’s case. His testimony in this respect is completely overborne by the testimony of defendant’s witnesses and the photograph showing the manner in which the end of the cable was protected.

The judgment appealed from should be reversed, with costs, on the law and the facts, and the complaint dismissed, with costs.

Present — Dowling, P. J., Merrell, Finch, McAvot and Proskauer, JJ.; Merrell, J., dissents.

De Gaetano v. Merritt & Chapman Derrick & Wrecking Co., 219 A.D. 242, 219 N.Y.S. 689, 1927 N.Y. App. Div. LEXIS 10887 (N.Y. Ct. App. 1927).

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219 A.D. 242 (De Gaetano v. Merritt & Chapman Derrick & Wrecking Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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