Walsh v. Anderson

Appellate Division of the Supreme Court of New York

Walsh v. Anderson

255 A.D. 786, 6 N.Y.S.2d 922, 1938 N.Y. App. Div. LEXIS 5321

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

DecidedOctober 7, 1938

StatusPublished

This text of 255 A.D. 786 (Walsh v. Anderson) 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

Walsh v. Anderson, 255 A.D. 786, 6 N.Y.S.2d 922, 1938 N.Y. App. Div. LEXIS 5321 (N.Y. Ct. App. 1938).

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Opinion

Action to recover damages for personal injuries sustained by the plaintiff, respondent, through the alleged negligence of the defendant’s testator while the plaintiff was seated in a truck which was being loaded through the instrumentality of an excavating machine owned and operated by the said testator. A link in the chain by means of which the machine was operated broke while the loaded bucket was over the truck, causing the bucket to fall upon the truck’s load, injuring plaintiff. The issues were submitted to the jury, which returned a verdict in plaintiff’s favor, upon which verdict judgment was entered. From that judgment defendant appeals. Judgment reversed on the law, with costs, and complaint [787]*787dismissed, with costs. Plaintiff failed to prove facts sufficient to establish a cause of action. He failed to prove any specification of alleged negligence. The verdict and judgment rest only upon speculation, conjecture and theory. (Welsh v. Cornell, 168 N. Y. 508, 510-512; Carlson v. P. B. Co., 132 id. 273, 280.) As matter of law (a) the testator was not negligent in using a chain instead of a cable (Harley v. B. C. M. Co., 142 N. Y. 31; Davies v. Pelham Hod Elevating Co., 65 Hun, 573; 76 id. 289; Cleary v. Dietz Co., 222 N. Y. 126, 133); (b) the evidence is wholly insufficient to support plaintiff’s specification of testator’s negligence that abrasive matter caused the break in the chain; (c) there is no evidence to support the specification that the machine was operated blindly so that the chain snapped, causing it to disintegrate; (d) the evidence likewise fails to support the specification of negligence based on alleged improper inspection (Smith v. N. Y. C. & H. R. R. R. Co., 164 N. Y. 491; Young v. Mason Stable Co., 193 id. 188); and (e) there was no proof of notice to the testator, not the manufacturer of the chain, of any defect therein. (Devlin v. Smith, 89 N. Y. 470; Sweeney v. Rozell, 31 Misc. 640.) Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.

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Action to recover damages for personal injuries sustained by the plaintiff, respondent, through the alleged negligence of the defendant’s testator while the plaintiff was seated in a truck which was being loaded through the instrumentality of an excavating machine owned and operated by the said testator. A link in the chain by means of which the machine was operated broke while the loaded bucket was over the truck, causing the bucket to fall upon the truck’s load, injuring plaintiff. The issues were submitted to the jury, which returned a verdict in plaintiff’s favor, upon which verdict judgment was entered. From that judgment defendant appeals. Judgment reversed on the law, with costs, and complaint [787]*787dismissed, with costs. Plaintiff failed to prove facts sufficient to establish a cause of action. He failed to prove any specification of alleged negligence. The verdict and judgment rest only upon speculation, conjecture and theory. (Welsh v. Cornell, 168 N. Y. 508, 510-512; Carlson v. P. B. Co., 132 id. 273, 280.) As matter of law (a) the testator was not negligent in using a chain instead of a cable (Harley v. B. C. M. Co., 142 N. Y. 31; Davies v. Pelham Hod Elevating Co., 65 Hun, 573; 76 id. 289; Cleary v. Dietz Co., 222 N. Y. 126, 133); (b) the evidence is wholly insufficient to support plaintiff’s specification of testator’s negligence that abrasive matter caused the break in the chain; (c) there is no evidence to support the specification that the machine was operated blindly so that the chain snapped, causing it to disintegrate; (d) the evidence likewise fails to support the specification of negligence based on alleged improper inspection (Smith v. N. Y. C. & H. R. R. R. Co., 164 N. Y. 491; Young v. Mason Stable Co., 193 id. 188); and (e) there was no proof of notice to the testator, not the manufacturer of the chain, of any defect therein. (Devlin v. Smith, 89 N. Y. 470; Sweeney v. Rozell, 31 Misc. 640.) Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.

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255 A.D. 786, 6 N.Y.S.2d 922, 1938 N.Y. App. Div. LEXIS 5321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walsh-v-anderson-nyappdiv-1938.

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