Mack v. Village of Pleasantville

246 A.D. 762

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1935
• Status: Published

Opinion

Judgment dismissing plaintiff’s complaint on the merits in an action to recover for a death occasioned by a fall from a plank used as a passageway from sidewalk to building across an excavation resultant from street widening, reversed on the law and a new trial granted, with costs to appellant to abide the event. In view of the fact that the plank afforded the sole means of access to the intestate’s building, we are of opinion that a question of fact was presented for the jury as to whether or not plaintiff’s intestate was imprudent or negligent in utilizing it. The negligence of the defendant is dependent upon a finding by the jury that the defendant village furnished the means and held out the unsafe passageway as a means of access. The determination of that element depends largely on whether or not the shop as reconstructed was turned over to the intestate for repossession and reuse. If no means of access at all were provided, and the intestate merely adopted the way utilized by workmen or made his own passageway, there can be no recovery. Lazansky, P. J., Young, Hagarty, CarsweE and Tompkins, JJ., concur.