Kenny v. Douglas Manor Ass'n

252 A.D. 780, 299 N.Y.S. 384, 1937 N.Y. App. Div. LEXIS 6269

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 22, 1937
• Status: Published

Opinion

The infant plaintiff, aged about fifteen years, was an invitee on the premises of defendant, to which a limited class resorted for amusement. Amongst other devices there maintained was a water slide, and in using the same the infant plaintiff was injured, owing, as he claims, to a structural defect. In this action to recover for personal injuries caused by defendant’s negligence in the maintenance and permitted use of this alleged defective water slide, the complaint was dismissed at the close of the plaintiffs’ evidence. As we view it, there were somewhat obvious defects in the construction of the slide, rendering it dangerous to use; and as a question of fact such dangers in its use by invitees might reasonably have been anticipated and foreseen by the defendant. Therefore, it was error to dismiss the complaint. In addition, the plaintiff called an expert, who had some experimental qualifications, who testified as to water slides in use elsewhere. The evidence of this expert was struck out, but it does not appear that it was solely on the ground that he was not qualified. Although his experience was somewhat limited, it was error to strike out the evidence, for the weight and sufficiency thereof was for the jury. (Slocovich v. Orient Mut. Ins. Co., 108 N. Y. 56; 1 Wigmore Evidence [2d ed.], §§ 557-560; Richardson Evidence [5th ed.], §§ 522, 527, 528.) Judgment reversed on the law and a new trial granted, with costs to appellants to abide the event. Hagarty, Davis, Johnston, Taylor and Close, JJ., concur.