Winans v. Kendrick

24 A.D.2d 1076, 265 N.Y.S.2d 895, 1965 N.Y. App. Div. LEXIS 2790

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 1965
• Status: Published

Opinion

Judgment and order affirmed, without costs of this appeal to any party. All concur except Williams, P. J., and Bastow, J., who dissent and vote to reverse and to grant a new trial in the following Memorandum: 'The findings implicit in the verdict of the jury that plaintiff’s intestate was eontributorily negligent or that defendant was not negligent are against the weight of the evidence. Moreover, it was error to exclude the proffered testimony that on no prior occasion through the years had the sheets of metal stacked under the windows fallen. The precipitous ruling of the trial court sustaining an objection to the. first question by plaintiff’s counsel that related to this subject effectively foreclosed full exploration thereof. “ By the great weight of modern American authority a custom either to take or to omit a precaution is generally admissible as bearing on what is proper conduct under the circumstances, but is not conclusive. Such evidence, coupled with testimony that the custom was observed, may be offered to show due care.” (2 Harper & James, Law of Torts, § 17.3; see, also, Shannahan v. Empire Eng. Corp., 204 N. Y. 543, 550.) (Appeal from a judgment of Monroe Trial Term dismissing the complaint; also appeal from order denying plaintiff’s motion for a new trial.) Present — Williams, P. J., Bastow, Goldman, Henry and Marsh, JJ.