Eufemia v. Pacifico

24 A.D.2d 673, 261 N.Y.S.2d 100, 1965 N.Y. App. Div. LEXIS 3673

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 8, 1965
• Status: Published

Opinion

Reynolds, J.

Appeal by the defendants from a judgment of the Supreme Court, Schoharie County, entered on a jury verdict in favor of respondent in the amount of $3,580 and from an order of that court denying a motion to set aside the verdict. Respondent was injured when parts of a chimney of a burning house owned by appellant Fiorio Pacifico fell on his left leg and ankle. At the time of the injury respondent was walking toward the burning structure ostensibly to help Vincent Pacifico, Fiorio’s son, to see if anything could possibly be salvaged from the conflagration. Respondent predicates negligence on Vincent’s failure to warn him about the danger that the chimney might fall, concerning which he had been previously apprised by a volunteer fireman, While we have some reservation that such a warning was even required under the circumstances here involved, we find as a matter of law that respondent was eontributorily negligent, and also assumed the risk involved, in proceeding from a position of safety directly toward the obvious and inherent dangers present in the instant situation (see Utica Mut. Ins. Co. v. Amsterdam Color Works, 284 App. Div. 376, 379). In addition we find no adequate proof which establishes Vincent to be Fiorio’s agent with respect to the home. Judgment and order reversed, on the law and the facts, and complaint dismissed, without costs. Gibson, P. J., Taylor, Aulisi and Hamm, JJ., concur.