Pupek v. Wesnofski

264 A.D. 880, 35 N.Y.S.2d 476, 1942 N.Y. App. Div. LEXIS 5226

Opinion

Action to recover damages for personal injuries alleged to have been sustained by plaintiff as the result of falling into an open excavation on defendant Wesnofski’s farm. The court dismissed the complaint on the ground that the plaintiff was guilty of contributory negligence as matter of law. While we believe plaintiff’s contributory negligence was a question for the jury, the judgment must be affirmed because the evidence conclusively shows that plaintiff was a mere trespasser or, at most, a bare licensee. Plaintiff failed to establish actionable negligence on the part of defendants. (Mendelowitz v. Neisner, 258 N. Y. 181.) Judgment unanimously affirmed, with costs. Present — Lazansky, P, J.. Carswell, Johnston, Taylor and Close, JJ.