Stock v. Le Boutillier

18 Misc. 349, 41 N.Y.S. 649, 75 N.Y. St. Rep. 1035

• Court: City of New York Municipal Court
• Decided: October 15, 1896
• Status: Published

Opinion

Fitzsimons, J.

This is an action for damages based upon the negligence' of defendants in whose employ, as saleswoman, the plaintiff was at the time of the injuries complained of, which were caused by the f alling of a .basket which was connected with a certain cash-carrying machine in the defendants’ store.

It was not error for the justice to allow testimony showing that within a reasonable time before the time in question that like baskets fell from the machine, in question, because it tended to prove the dangerous condition of said machine and that because of the lapse of time and the frequency of ■ such happenings that defendants had constructive-notice at least of such condition.

The charge, we think, was very fair and impartial.

If anything, it was rather in the defendants’ favor.

The trial justice several times '^charged that defendants were only required to use reasonable care in the use of the machinery in question.

The question of negligence of the defendants, under the circumstances of this case, was a question of fact for the jury, and the justice was right in refusing to dismiss the complaint; likewise was the question of contributory negligence.

The judgment must he affirmed, with costs.

Van Wyck, Oh. J., concurs.

Judgment affirmed, with costs.