Farrell v. Town of North Elba

112 A.D. 144, 97 N.Y.S. 1110, 1906 N.Y. App. Div. LEXIS 620

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 7, 1906
• Status: Published

Opinion

Kellogg, J.:

There is an entire absence of proof as to how the deceased came in the water, or what'care be took, or how negligent he was. We are left entirely to conjecture as to the cause of his death, or his actions. The court held there was no evidence tending to show that he exercised due care.- It is difficult to see how a man as familiar with the place as he was could fall or get into the river there with the exercise of due care. He knew the situation and the danger; he knew it was dark, the narrowing of 'the road and the turn in the walk. In Peaslee v. Town of Chatham (69 Hun, 389), a very similar case, the complaint was dismissed. There the decedent was seventy-eight years old and more likely with due care to stumble and fall on a dark and rainy night than a young man. It would seem that a young man accustomed to the place would not naturally go off or fall off the abutment or approach to this bridge if he were exercising due care. In Irish v. Union Bag & Paper Co. (103 App. Div. 45) there was no reason why the intestate should 'apprehend danger, and the injury might well have occurred frcjm the improperly insulated wire even though he were exercising all the care the knowh situation seemed to demand from the most careful person. He was a prudent.. and sober man, and the nature and extent of the danger was not apparent to him. Here ii cannot well be seen bow the decedent came to his death without some fault or carelessness upon his part. The judgment is affirmed, with costs.

All concurred.

Judgment unanimously affirmed, with costs.