Meginn v. Ramsdell

163 A.D. 232, 148 N.Y.S. 415, 1914 N.Y. App. Div. LEXIS 6905

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 26, 1914
• Status: Published

Opinion

Burr, J.:

Plaintiff’s complaint is based upon an allegation that defendants negligently permitted their walks and approaches to the ferry house to become smooth and icy, and not upon any defective construction thereof. In addition, plaintiff’s own testimony is to the effect that the walk was icy at the spot where she fell, and this was twice repeated. It appears without dispute that snow and sleet had fallen on the morning in question, and it had only ceased storming about an hour before the accident.

The rule applicable to defendants is the use of reasonable care in the maintenance of the approaches to its ferry house. (Weldon v. N. Y., N. H. & H. R. R. Co., 159 App. Div. 649; Kelly v. Manhattan Railway Co., 112 N. Y. 443.) Ho negligence could be predicated upon failure to remove snow or ice within an hour after it had fallen. It appeared in evidence that plaintiff had executed a release in writing of the claim in suit. When the defendants read in evidence this instrument, whose execution was not denied, the presumption arose that it was valid. (Griffith v. American Bridge Co., 157 App. Div. 264.) Plaintiff’s own testimony clearly establishes that she intended to execute a full release of her claim, although at the time of the accident she may have been ignorant of her injuries. At the close of the entire case plaintiff’s complaint should have been dismissed, and, acting within the power and authority now given to us, we think that the judgment and order appealed from should be reversed, with costs, and plaintiff’s complaint dismissed, with costs.

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Jemes, P. J., Carr, Stapleton and Putnam, JJ., concurred.

Judgment and order reversed, with .costs, and plaintiff’s complaint dismissed, with costs.

See Code Civ. Proe. § 1317, as amd. by Laws of 1913, chap. 380.— [Rep.