Huber v. Coney Island & Brooklyn Railroad

170 A.D. 911, 154 N.Y.S. 1126

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1915
• Status: Published

Opinion

Judgment reversed and new trial granted, costs to abide the event, on the ground that the evidence tended to establish (1) that Hoseworthy was defendant’s superintendent, whose principal duty was that of superintendence; (2) that he was negligent in a matter of superintendence in directing the use of the process of ramming down the partly cut posts instead of using a long rope to pull them down; (3) that such negligent act was a proximate cause of the accident; and further (4) that plaintiff was free from contributory negligence; and also because, on the evidence showing that plaintiff objected to the method used and was by the superintendent practically assured of its safety and directed to continue its use, the issue of assumption of risk was, even in the end, for the jury and not for the trial court to decide. Jenks, P. J., Thomas, Stapleton, Mills and Putnam, JJ., concurred.