Donohue v. City of New York

Appellate Division of the Supreme Court of New York

Donohue v. City of New York

249 A.D. 748, 291 N.Y.S. 946, 1936 N.Y. App. Div. LEXIS 5854

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

DecidedDecember 15, 1936

StatusPublished

This text of 249 A.D. 748 (Donohue 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

Donohue v. City of New York, 249 A.D. 748, 291 N.Y.S. 946, 1936 N.Y. App. Div. LEXIS 5854 (N.Y. Ct. App. 1936).

Pincite

Opinion

Action by an administratrix to recover damages sustained by the death of her intestate, alleged to have resulted from the negligence of the defendant-appellant. Plaintiff’s intestate, with other children, was playing in a trench excavated by the appellant in a public highway, when an automobile was driven over a pile of dirt and into and upon the intestate, killing him. Judgment in favor of the plaintiff, entered upon the verdict of a jury, affirmed, with costs. No opinion. Lazansky, P. J., Young, Hagarty and Adel, JJ., concur; Taylor, J., dissents and votes to reverse the judgment and to dismiss the complaint, with the following memorandum: Assuming that the defendant-appellant was negligent as charged, there is no evidence from which it may be inferred that such negligence was either the direct or proximate cause of the accident and the death of the decedent. He, with other children, was playing in the trench excavated by the appellant in a public highway when an automobile was driven over a pile of dirt at the side of the trench, into the trench and upon the intestate, causing his death. There is no evidence as to who was driving the automobile or that the driver did not see the pile of dirt and the trench. Therefore, the plaintiff established no causal connection between the appellant’s alleged breach of duty and the accident, and appellant is not liable. (Boronkay v. Robinson & Carpenter, 247 N. Y. 365, 368; Martin v. Herzog, 228 id. 164, 170.)

Free access — add to your briefcase to read the full text and ask questions with AI

Action by an administratrix to recover damages sustained by the death of her intestate, alleged to have resulted from the negligence of the defendant-appellant. Plaintiff’s intestate, with other children, was playing in a trench excavated by the appellant in a public highway, when an automobile was driven over a pile of dirt and into and upon the intestate, killing him. Judgment in favor of the plaintiff, entered upon the verdict of a jury, affirmed, with costs. No opinion. Lazansky, P. J., Young, Hagarty and Adel, JJ., concur; Taylor, J., dissents and votes to reverse the judgment and to dismiss the complaint, with the following memorandum: Assuming that the defendant-appellant was negligent as charged, there is no evidence from which it may be inferred that such negligence was either the direct or proximate cause of the accident and the death of the decedent. He, with other children, was playing in the trench excavated by the appellant in a public highway when an automobile was driven over a pile of dirt at the side of the trench, into the trench and upon the intestate, causing his death. There is no evidence as to who was driving the automobile or that the driver did not see the pile of dirt and the trench. Therefore, the plaintiff established no causal connection between the appellant’s alleged breach of duty and the accident, and appellant is not liable. (Boronkay v. Robinson & Carpenter, 247 N. Y. 365, 368; Martin v. Herzog, 228 id. 164, 170.)

Cite This Page — Counsel Stack

Bluebook (online)

249 A.D. 748, 291 N.Y.S. 946, 1936 N.Y. App. Div. LEXIS 5854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donohue-v-city-of-new-york-nyappdiv-1936.

Opinion

Related

Cite This Page — Counsel Stack