Rutherford v. N & R Equipment Corp.

Appellate Division of the Supreme Court of New York

Rutherford v. N & R Equipment Corp.

32 A.D.2d 980, 301 N.Y.S.2d 654, 1969 N.Y. App. Div. LEXIS 3520

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

DecidedJuly 1, 1969

StatusPublished

This text of 32 A.D.2d 980 (Rutherford v. N & R Equipment Corp.) 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

Rutherford v. N & R Equipment Corp., 32 A.D.2d 980, 301 N.Y.S.2d 654, 1969 N.Y. App. Div. LEXIS 3520 (N.Y. Ct. App. 1969).

Pincite

Opinion

Greenblott, J.

Appeal by plaintiff (1) from a judgment of the Supreme Court of St. Lawrence County, entered September 25, 1967, upon a verdict of no cause of action in favor of defendant, and (2) from an order of said court which denied plaintiff’s motion to set aside the verdict. Plaintiff was injured when he fell into a two-feet by two-feet hole excavated by the defendant in the course of construction of a sewer in a street in front of his home. The evidence indicates that the accident happened at night when the appellant stepped from the curb to observe rats in the sewer trench. Appellant contends that the trial court committed reversible error in charging the jury that defendant’s duty was to refrain or to abstain from inflicting upon the plaintiff or other persons an “ intentional or wilful or wanton injury”. The appellant contends that the determination of the duty owed to the plaintiff was a jury question and the court committed error in removing this determination from consideration by the jury. A review of the evidence indicates that the court was correct in finding that the appellant was a licensee as a matter of law. (Cf. Finkle v. Zimmerman, 26 A D 2d 179.) Since there was no evidence or any inference that appellant was a business visitor or invitee to whom respondent would owe a duty of reasonable care, respondent was bound only to refrain from inflicting an intentional or wanton injury. Upon the evidence the jury was entirely warranted in resolving against the appellant the issue of liability. The remainder of appellant’s contentions have been examined and are found to be without substance. Judgment and order affirmed, without costs. Gibson, P. J., Staley, Jr., Cooke and Greenblott, JJ., concur in memorandum by Greenblott, J.; Aulisi, J., not voting.

Free access — add to your briefcase to read the full text and ask questions with AI

Greenblott, J.

Appeal by plaintiff (1) from a judgment of the Supreme Court of St. Lawrence County, entered September 25, 1967, upon a verdict of no cause of action in favor of defendant, and (2) from an order of said court which denied plaintiff’s motion to set aside the verdict. Plaintiff was injured when he fell into a two-feet by two-feet hole excavated by the defendant in the course of construction of a sewer in a street in front of his home. The evidence indicates that the accident happened at night when the appellant stepped from the curb to observe rats in the sewer trench. Appellant contends that the trial court committed reversible error in charging the jury that defendant’s duty was to refrain or to abstain from inflicting upon the plaintiff or other persons an “ intentional or wilful or wanton injury”. The appellant contends that the determination of the duty owed to the plaintiff was a jury question and the court committed error in removing this determination from consideration by the jury. A review of the evidence indicates that the court was correct in finding that the appellant was a licensee as a matter of law. (Cf. Finkle v. Zimmerman, 26 A D 2d 179.) Since there was no evidence or any inference that appellant was a business visitor or invitee to whom respondent would owe a duty of reasonable care, respondent was bound only to refrain from inflicting an intentional or wanton injury. Upon the evidence the jury was entirely warranted in resolving against the appellant the issue of liability. The remainder of appellant’s contentions have been examined and are found to be without substance. Judgment and order affirmed, without costs. Gibson, P. J., Staley, Jr., Cooke and Greenblott, JJ., concur in memorandum by Greenblott, J.; Aulisi, J., not voting.

Cite This Page — Counsel Stack

Bluebook (online)

32 A.D.2d 980, 301 N.Y.S.2d 654, 1969 N.Y. App. Div. LEXIS 3520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rutherford-v-n-r-equipment-corp-nyappdiv-1969.