Yokel v. Safety Holding Co.

Appellate Terms of the Supreme Court of New York

Yokel v. Safety Holding Co.

126 Misc. 327, 213 N.Y.S. 347, 1926 N.Y. Misc. LEXIS 867

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 15, 1926

StatusPublished

This text of 126 Misc. 327 (Yokel v. Safety Holding Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Yokel v. Safety Holding Co., 126 Misc. 327, 213 N.Y.S. 347, 1926 N.Y. Misc. LEXIS 867 (N.Y. Ct. App. 1926).

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Opinion

Wagner, J.

The plaintiff having made out a prima facie case it was error for the trial justice to dismiss the complaint and refuse the submission of the evidence to the jury for their consideration. Reading the proof with its favorable inferences toward plaintiff it appears that the infant, about four years old, was taken by its mother to the roof of the tenement house in which they resided, where she was hanging clothes on washlines with the permission of the owner; that she had no one to intrust the care of the child with and directed the child to stand immediately beside her; that while doing her work the child stumbled over some wood lying on the roof and in thus falling caused certain injuries. The evidence showed that there formerly had been installed upon the roof a large wooden tank for water supply which later had been discontinued in use and had deteriorated to the extent of falling apart with its debris strewn about the roof for a period of time long enough to impute notice thereof to the owner, and that it was upon one of these broken pieces that the child stumbled and fell. The dismissal of the case on the ground that no negligence on the defendant’s part had been shown was clearly unjustified upon the state of facts above related. There was presented an issue of fact on that phase of the case which the plaintiff was entitled to have decided by the [328]*328jury. It follows, therefore, that the judgment appealed from must be reversed and a new trial ordered, with thirty dollars costs to the appellant to abide the event.

All concur; present, Guy, Wagner and Lydon, JJ.

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Wagner, J.

The plaintiff having made out a prima facie case it was error for the trial justice to dismiss the complaint and refuse the submission of the evidence to the jury for their consideration. Reading the proof with its favorable inferences toward plaintiff it appears that the infant, about four years old, was taken by its mother to the roof of the tenement house in which they resided, where she was hanging clothes on washlines with the permission of the owner; that she had no one to intrust the care of the child with and directed the child to stand immediately beside her; that while doing her work the child stumbled over some wood lying on the roof and in thus falling caused certain injuries. The evidence showed that there formerly had been installed upon the roof a large wooden tank for water supply which later had been discontinued in use and had deteriorated to the extent of falling apart with its debris strewn about the roof for a period of time long enough to impute notice thereof to the owner, and that it was upon one of these broken pieces that the child stumbled and fell. The dismissal of the case on the ground that no negligence on the defendant’s part had been shown was clearly unjustified upon the state of facts above related. There was presented an issue of fact on that phase of the case which the plaintiff was entitled to have decided by the [328]*328jury. It follows, therefore, that the judgment appealed from must be reversed and a new trial ordered, with thirty dollars costs to the appellant to abide the event.

All concur; present, Guy, Wagner and Lydon, JJ.

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Bluebook (online)

126 Misc. 327, 213 N.Y.S. 347, 1926 N.Y. Misc. LEXIS 867, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yokel-v-safety-holding-co-nyappterm-1926.