Schmidt v. New York Telephone Co.

Appellate Division of the Supreme Court of New York

Schmidt v. New York Telephone Co.

250 A.D. 788, 294 N.Y.S. 561, 1937 N.Y. App. Div. LEXIS 9014

Appellate Division of the Supreme Court of the State of New York·Decided March 30, 1937·Published

Opinion

The action is for damages for personal injuries sustained by an infant and for loss of services. The trial resulted in a verdict of $750 for the infant and in a verdict for the defendant on the father’s cause of action. Defendant alone appeals. There was evidence from which the jury could have found that the defendant placed its trailer on the sidewalk with its shaft or tongue raised and insecurely resting against a telegraph pole; that the defendant permitted the trailer to remain on the sidewalk unguarded; that the infant was not playing on the trailer but was on the sidewalk when the shaft or tongue fell and injured her. Under the circumstances, the jury was justified in concluding that defendant was negligent. (Boylhart v. Di Marco & Reimann, Inc., 270 N. Y. 217.) The court’s references to the trailer being an attractive nuisance, if error, were harmless, particularly as the court charged that the trailer “ in and of itself would not constitute an attractive nuisance.” Judgment and order unanimously affirmed, with costs. Present — Lazansky, P. J., Johnston, Adel, Taylor and Close, JJ.

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The action is for damages for personal injuries sustained by an infant and for loss of services. The trial resulted in a verdict of $750 for the infant and in a verdict for the defendant on the father’s cause of action. Defendant alone appeals. There was evidence from which the jury could have found that the defendant placed its trailer on the sidewalk with its shaft or tongue raised and insecurely resting against a telegraph pole; that the defendant permitted the trailer to remain on the sidewalk unguarded; that the infant was not playing on the trailer but was on the sidewalk when the shaft or tongue fell and injured her. Under the circumstances, the jury was justified in concluding that defendant was negligent. (Boylhart v. Di Marco & Reimann, Inc., 270 N. Y. 217.) The court’s references to the trailer being an attractive nuisance, if error, were harmless, particularly as the court charged that the trailer “ in and of itself would not constitute an attractive nuisance.” Judgment and order unanimously affirmed, with costs. Present — Lazansky, P. J., Johnston, Adel, Taylor and Close, JJ.

Schmidt v. New York Telephone Co., 250 A.D. 788, 294 N.Y.S. 561, 1937 N.Y. App. Div. LEXIS 9014 (N.Y. Ct. App. 1937).

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Opinion

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