Wildman v. City of New York

Appellate Division of the Supreme Court of New York

Wildman v. City of New York

254 A.D. 591, 3 N.Y.S.2d 37, 1938 N.Y. App. Div. LEXIS 6685

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

DecidedMarch 25, 1938

StatusPublished

Cited by3 cases

This text of 254 A.D. 591 (Wildman v. City of New York) 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

Wildman v. City of New York, 254 A.D. 591, 3 N.Y.S.2d 37, 1938 N.Y. App. Div. LEXIS 6685 (N.Y. Ct. App. 1938).

Pincite

Opinion

The infant plaintiff was a student in the Samuel J. Tilden High School. While she was standing near an open window on the second floor of the school, she was struck by a rubber ball thrown by a boy who was on the sidewalk or in the street, and as a result of the injuries she sustained her left eye was removed. Plaintiffs claim defendant was negligent in failing to have screens on the windows because it was the practice of boys to play punch-ball and other games in the street. In our opinion plaintiffs failed to establish negligence on the part of the defendant. “ Negligence is to be gauged by the ability of one to anticipate danger. The test of actionable negligence is not what could have been done to have prevented a particular accident, but what a reasonably prudent and careful person would have done under the circumstances in the discharge of his duty to the injured party. Failure to guard against a remote possibility of accident, or one which could not, in the exercise of ordinary care, be foreseen, does not constitute negli[592]*592genee.” {Lane v. City of Buffalo, 232 App. Div. 334, 338.) Judgment in favor of plaintiffs reversed on the law, with costs, and complaint dismissed, with costs.

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The infant plaintiff was a student in the Samuel J. Tilden High School. While she was standing near an open window on the second floor of the school, she was struck by a rubber ball thrown by a boy who was on the sidewalk or in the street, and as a result of the injuries she sustained her left eye was removed. Plaintiffs claim defendant was negligent in failing to have screens on the windows because it was the practice of boys to play punch-ball and other games in the street. In our opinion plaintiffs failed to establish negligence on the part of the defendant. “ Negligence is to be gauged by the ability of one to anticipate danger. The test of actionable negligence is not what could have been done to have prevented a particular accident, but what a reasonably prudent and careful person would have done under the circumstances in the discharge of his duty to the injured party. Failure to guard against a remote possibility of accident, or one which could not, in the exercise of ordinary care, be foreseen, does not constitute negli[592]*592genee.” {Lane v. City of Buffalo, 232 App. Div. 334, 338.) Judgment in favor of plaintiffs reversed on the law, with costs, and complaint dismissed, with costs.

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Bluebook (online)

254 A.D. 591, 3 N.Y.S.2d 37, 1938 N.Y. App. Div. LEXIS 6685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wildman-v-city-of-new-york-nyappdiv-1938.

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