Duschnik v. Deco Restaurants, Inc.

248 A.D. 940, 290 N.Y.S. 465, 1936 N.Y. App. Div. LEXIS 8126

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 7, 1936
• Status: Published

Opinion

Judgment reversed on the law and a new trial granted, with costs to the appellant to abide the event. Memorandum: We are of the opinion in this case that questions of fact were presented which should have been submitted to the jury. A fundamental question relates to the character of the plaintiff's presence at the plant when the accident took place, that is, as to whether he was an invitee or a trespasser. There is evidence from -which the jury might find that Learner was in charge of the plant and had incidental authority to invite plaintiff to do what he was doing, and that Learner did, at least impliedly, invite him. Further questions of fact, if the plaintiff is found to have been an invitee, relate to the negligence of the defendant and the contributory negligence of the plaintiff. All concur, except Edgcomb and Thompson, JJ., who dissent and vote for affirmance. (The judgment dismisses the complaint in an action for personal injuries sustained by hand becoming caught in a meat grinder.) Present — Sears, P. J., Taylor, Edgcomb, Thompson and Lewis, JJ.