Mysliwiec v. W. Lowenthal Co.

Appellate Division of the Supreme Court of New York

Mysliwiec v. W. Lowenthal Co.

280 A.D. 852, 113 N.Y.S.2d 289, 1952 N.Y. App. Div. LEXIS 3896

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

DecidedJune 13, 1952

StatusPublished

Cited by4 cases

This text of 280 A.D. 852 (Mysliwiec v. W. Lowenthal Co.) 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

Mysliwiec v. W. Lowenthal Co., 280 A.D. 852, 113 N.Y.S.2d 289, 1952 N.Y. App. Div. LEXIS 3896 (N.Y. Ct. App. 1952).

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Opinion

Appeal by plaintiffs from an order and judgment of the County Court of Albany County, setting aside verdicts in favor of plaintiffs and dismissing the complaints. Defendant operates a shoddy mill which abuts on Remsen Street in the city of Cohoes, N. Y., for a distance of about 100 feet, and in its business handles bales of waste each- weighing several hundred pounds and being approximately five feet high and four feet wide, bound with banding wire. The nine-year-old infant plaintiff proceeded down Remsen Street accompanied by two other boys, and stopped to play on some of these bales which were in the street. There is evidence that there were four or five bales in the street and many more of them on a platform. After playing about ten minutes, plaintiff tripped and severely cut his arm on a sharp piece of wire on a bale. There is evidence that plaintiff and other boys had played there before, and that employees of defendant knew it and did not chase them away. The cases were submitted to the jury as to the negligence of the defendant, and the jury returned a verdict in favor of the infant plaintiff for $900, and a verdict in favor of his father for $400. The trial court reserved decision on motions for dismissal prior to the submission to the jury, and after the verdicts were returned granted the motions and made the order appealed from. We think the verdicts should have been permitted to stand. The jury could have found from the evidence that the defendant was obstructing the street with its bales, and that it was reasonably foreseeable that boys lawfully passing through the public street would play on and about them with some risk of injury. Judgment and order reversed and the verdict reinstated, with costs. Foster, P. J., Heffernan, Brewster, Bergan and Coon, JJ., concur. [See post, p. 1001.]

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Appeal by plaintiffs from an order and judgment of the County Court of Albany County, setting aside verdicts in favor of plaintiffs and dismissing the complaints. Defendant operates a shoddy mill which abuts on Remsen Street in the city of Cohoes, N. Y., for a distance of about 100 feet, and in its business handles bales of waste each- weighing several hundred pounds and being approximately five feet high and four feet wide, bound with banding wire. The nine-year-old infant plaintiff proceeded down Remsen Street accompanied by two other boys, and stopped to play on some of these bales which were in the street. There is evidence that there were four or five bales in the street and many more of them on a platform. After playing about ten minutes, plaintiff tripped and severely cut his arm on a sharp piece of wire on a bale. There is evidence that plaintiff and other boys had played there before, and that employees of defendant knew it and did not chase them away. The cases were submitted to the jury as to the negligence of the defendant, and the jury returned a verdict in favor of the infant plaintiff for $900, and a verdict in favor of his father for $400. The trial court reserved decision on motions for dismissal prior to the submission to the jury, and after the verdicts were returned granted the motions and made the order appealed from. We think the verdicts should have been permitted to stand. The jury could have found from the evidence that the defendant was obstructing the street with its bales, and that it was reasonably foreseeable that boys lawfully passing through the public street would play on and about them with some risk of injury. Judgment and order reversed and the verdict reinstated, with costs. Foster, P. J., Heffernan, Brewster, Bergan and Coon, JJ., concur. [See post, p. 1001.]

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Bluebook (online)

280 A.D. 852, 113 N.Y.S.2d 289, 1952 N.Y. App. Div. LEXIS 3896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mysliwiec-v-w-lowenthal-co-nyappdiv-1952.

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