Kelly v. City of New York

Appellate Division of the Supreme Court of New York

Kelly v. City of New York

129 A.D. 658, 114 N.Y.S. 178, 1908 N.Y. App. Div. LEXIS 1395

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

DecidedDecember 30, 1908

StatusPublished

This text of 129 A.D. 658 (Kelly v. City of New York) 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.

Bluebook

Kelly v. City of New York, 129 A.D. 658, 114 N.Y.S. 178, 1908 N.Y. App. Div. LEXIS 1395 (N.Y. Ct. App. 1908).

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Opinion

Rich, J.:

This appeal is from a judgment in favor of the plaintiff in an action for negligence. The appellants contend, first, that there was no proof of negligence sufficient to warrant a recovery, and, second, that there was no proof of plaintiff’s freedom from contributory negligence, and an alleged error of the trial justice in refusing to charge a request.

There was sufficient evidence to warrant the court in submitting to the jury the question of negligence of both the defendants. The case at bar is not within the rule declared in Butler v. Village of Oxford (186 N. Y. 444); Hamilton v. City of Buffalo (173 id. 72); Beltz v. City of Yonkers (148 id. 67) and similar cases cited by the appellants. The same distinguishing features exist that were pointed out in Corr v. City of New York, (121 App. Div. 578).

Defendants requested the court to charge that “ if the jury find that the difference in height between the Belgian block and the foundation was not greater than three inches this was not such a condition as would render the city liable for negligence,” which was refused. The jury had been instructed that if the accident happened by reason of some condition of the street or sidewalk from which danger was not reasonably to be apprehended, and which according to common experience was not likely to happen in such [660]*660a case, the city was not liable. The question was whether the condition was such that danger was reasonably to be apprehended, which must be determined by the facts proven. I think the learned trial justice properly refused to charge as requested. He left it to the jury to say whether or not the facts established the liability of the defendants under the rules of law laid down for their guidance, and in doing this he was clearly right.

The judgment and orders should be affirmed, with costs.

Hooker and Miller, JJ., concurred; Jenks and Gaynor, JJ., dissented.

Judgment and orders affirmed, with costs.

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Rich, J.:

This appeal is from a judgment in favor of the plaintiff in an action for negligence. The appellants contend, first, that there was no proof of negligence sufficient to warrant a recovery, and, second, that there was no proof of plaintiff’s freedom from contributory negligence, and an alleged error of the trial justice in refusing to charge a request.

There was sufficient evidence to warrant the court in submitting to the jury the question of negligence of both the defendants. The case at bar is not within the rule declared in Butler v. Village of Oxford (186 N. Y. 444); Hamilton v. City of Buffalo (173 id. 72); Beltz v. City of Yonkers (148 id. 67) and similar cases cited by the appellants. The same distinguishing features exist that were pointed out in Corr v. City of New York, (121 App. Div. 578).

Defendants requested the court to charge that “ if the jury find that the difference in height between the Belgian block and the foundation was not greater than three inches this was not such a condition as would render the city liable for negligence,” which was refused. The jury had been instructed that if the accident happened by reason of some condition of the street or sidewalk from which danger was not reasonably to be apprehended, and which according to common experience was not likely to happen in such [660]*660a case, the city was not liable. The question was whether the condition was such that danger was reasonably to be apprehended, which must be determined by the facts proven. I think the learned trial justice properly refused to charge as requested. He left it to the jury to say whether or not the facts established the liability of the defendants under the rules of law laid down for their guidance, and in doing this he was clearly right.

The judgment and orders should be affirmed, with costs.

Hooker and Miller, JJ., concurred; Jenks and Gaynor, JJ., dissented.

Judgment and orders affirmed, with costs.

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Bluebook (online)

129 A.D. 658, 114 N.Y.S. 178, 1908 N.Y. App. Div. LEXIS 1395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-city-of-new-york-nyappdiv-1908.

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