24 A.D.2d 993 | N.Y. App. Div. | 1965
In an action to recover damages for wrongful death, defendant New York Racing Association appeals from a judgment of the Supreme Court, Queens County, entered January 19, 1965 upon a verdict in plaintiff’s favor against it. As against the remaining defendants, the action was discontinued. Judgment affirmed, with costs. The action arose out of a fatal accident on July 11, 1961 at Aqueduct Race Track, which is owned and operated by appellant. During the course of an “ exhibition ” workout between races, plaintiff’s intestate, Sidney Cole, a well-known professional jockey, was thrown from his mount after it had twice in rapid succession collided with the infield track rail. This railing, installed in 1959 when the track was completely rebuilt, was constructed of aluminum and supported at 10-foot intervals by metal posts, slightly more than 3 feet in height. The posts angled away from the railing down to the rim of the infield, where they were imbedded in cylindrical concrete footings about 8 inches in diameter, encased in metal. These concrete footings rose from 3 to 5 inches above the level of the ground. In falling, Cole hit the railing with the front of his body and immediately tumbled over it, striking his back and head upon one of these raised concrete bases. He died shortly thereafter. At the trial plaintiff proceeded on the theory that defendant was negligent in erecting and maintaining these concrete footings exposed and elevated above the ground, and that this negligence, although not the cause of decedent’s fall, was the proximate cause of his death. It was established through the composite testimony of several knowledgeable witnesses that footings elevated in this manner were nonexistent at any other track in the country. Defendant’s own witness, the architect who had designed the 1959 installation of this track and who had previously participated in the design and construction of several other major tracks throughout the country, testified that the plan he had originally submitted called for these