Friedel v. Coffin

Appellate Division of the Supreme Court of New York

Friedel v. Coffin

155 A.D. 559, 140 N.Y.S. 839, 1913 N.Y. App. Div. LEXIS 5164

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

DecidedMarch 14, 1913

StatusPublished

Cited by2 cases

This text of 155 A.D. 559 (Friedel v. Coffin) 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.

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Friedel v. Coffin, 155 A.D. 559, 140 N.Y.S. 839, 1913 N.Y. App. Div. LEXIS 5164 (N.Y. Ct. App. 1913).

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Opinion

Scott, J. :

Whether the areaway was within the street lines or wholly Upon the premises owned by the defendant Coffin and leased by the defendant Wagner, it was contiguous to the traveled sidewalk and it was the duty of the owner and lessee to see to it that the excavation was properly and reasonably guarded, for the presence of a deep excavation along the lines of the sidewalk, unless sufficiently guarded, necessarily created danger. (Donnelly v. City of Rochester, 166 N. Y. 315, 319.)

Whether the railing erected by the owner was a reasonably safe protection, considering the fact that children as well as adults were likely to use the sidewalk, was primarily a question for the jury (Id.), for unless the evidence is so plain that reasonable men might not reach adverse conclusions upon the subject a question of fact is presented for submission for the jury. (Erickson v. Twenty-third Street R. Co., 71 Hun, 108.) Upon the evidence as it stood when the complaint was dismissed, we think that reasonable men might well differ as to the sufficiency of the railing. It was, therefore, error to dismiss the complaint.

The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., Laughlin, Clarke and Dowling, JJ., concurred.

Judgment and order reversed, new trial ordered, coste ta-appellant to abide event. Order to be settled on notice.

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Scott, J. :

Whether the areaway was within the street lines or wholly Upon the premises owned by the defendant Coffin and leased by the defendant Wagner, it was contiguous to the traveled sidewalk and it was the duty of the owner and lessee to see to it that the excavation was properly and reasonably guarded, for the presence of a deep excavation along the lines of the sidewalk, unless sufficiently guarded, necessarily created danger. (Donnelly v. City of Rochester, 166 N. Y. 315, 319.)

Whether the railing erected by the owner was a reasonably safe protection, considering the fact that children as well as adults were likely to use the sidewalk, was primarily a question for the jury (Id.), for unless the evidence is so plain that reasonable men might not reach adverse conclusions upon the subject a question of fact is presented for submission for the jury. (Erickson v. Twenty-third Street R. Co., 71 Hun, 108.) Upon the evidence as it stood when the complaint was dismissed, we think that reasonable men might well differ as to the sufficiency of the railing. It was, therefore, error to dismiss the complaint.

The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., Laughlin, Clarke and Dowling, JJ., concurred.

Judgment and order reversed, new trial ordered, coste ta-appellant to abide event. Order to be settled on notice.

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155 A.D. 559, 140 N.Y.S. 839, 1913 N.Y. App. Div. LEXIS 5164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friedel-v-coffin-nyappdiv-1913.

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