Higney v. William L. Crow Construction Co.

Appellate Division of the Supreme Court of New York

Higney v. William L. Crow Construction Co.

27 A.D.2d 710, 276 N.Y.S.2d 902, 1967 N.Y. App. Div. LEXIS 4935

Appellate Division of the Supreme Court of the State of New York·Decided February 2, 1967·Published

Opinion

—-Judgment dismissing plaintiff’s complaint as to each defendant at the close of the case on the ground that no actionable negligence had been shown unanimously reversed, on the law and the facts, the judgment vacated, and a new trial ordered, with $50 costs and disbursements to abide the event. Plaintiff made out a prima facie ease of common-law negligence against each defendant. Upon the proof adduced a jury might properly conclude that each of the defendants had failed in the duty owing plaintiff, to his injury. (Harriman v. New York, Chicago & St. Louis R. R. Co., 253 N. Y. 398; Robinson v. Avella, 10 A D 2d 130). The testimony of plaintiff’s expert witness, moreover, that the acts of both defendants created the condition which caused the column to fall, was sufficient'to raise an issue of fact for the jury (Reisner v. New York Kosher Provisions, 25 A D 2d 511). The issue of plaintiff’s contributory negligence, not commented upon by the trial court, was also one of fact for the jury. Concur — Steuer, J. P., Tilzer, Rabin and Witmer, JJ.

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—-Judgment dismissing plaintiff’s complaint as to each defendant at the close of the case on the ground that no actionable negligence had been shown unanimously reversed, on the law and the facts, the judgment vacated, and a new trial ordered, with $50 costs and disbursements to abide the event. Plaintiff made out a prima facie ease of common-law negligence against each defendant. Upon the proof adduced a jury might properly conclude that each of the defendants had failed in the duty owing plaintiff, to his injury. (Harriman v. New York, Chicago & St. Louis R. R. Co., 253 N. Y. 398; Robinson v. Avella, 10 A D 2d 130). The testimony of plaintiff’s expert witness, moreover, that the acts of both defendants created the condition which caused the column to fall, was sufficient'to raise an issue of fact for the jury (Reisner v. New York Kosher Provisions, 25 A D 2d 511). The issue of plaintiff’s contributory negligence, not commented upon by the trial court, was also one of fact for the jury. Concur — Steuer, J. P., Tilzer, Rabin and Witmer, JJ.

Higney v. William L. Crow Construction Co., 27 A.D.2d 710, 276 N.Y.S.2d 902, 1967 N.Y. App. Div. LEXIS 4935 (N.Y. Ct. App. 1967).

Pincite

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Opinion

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