99 N.Y.S. 921 | N.Y. App. Div. | 1906
Lead Opinion
The questions involved in this case were fully considered upon the former appeal (78 App. Div. 481) and we desire to add. nothing to what was then said by the court, speaking through Mr. Justice Willard Bartlett, except that the case of Mullins v. Siegel-Cooper Co. (183 N. Y. 129) is authority for the correctness of the conclusion there reached that proof of numerous prior accidents caused by the defect complained of would have required the submission of the case to the jury. The criticism then made by this court upon the indefinite character of the proof of such former accidents has now been met. It was,, therefore, error to dismiss the complaint, and the judgment should be reversed, with costs, and a judgment ordered for,the plaintiff upon the special verdict, in accordance with section 1187 of the Code of Civil Procedure.
Jenks, J., concurred in result; Hooker and Rich, JJ., concurred; Gaynor, J., concurred in a separate memorandum.
Concurrence Opinion
In concurring I am unwilling to appear to be of opinion that proof of prior accidents is any evidence that the place was- “ obviously ” dangerous, and negligence can be predicated only On a finding of fact that the place was “obviously” dangerous. It is not enough tjiat it was.dangerous, which previous accidents might show to be the fact-it lnust.be obviously dangerous to persons of ordinary prudence and foresight. Evidence of former accidents at the sanie place is .only admissible as notice to the defendant that the place was dangerous. If knowledge of such accidents be .brought home to the' .defendant, that proves notice; or if there be so many of such accidents that the defendant will be presumed by the jury to "have knowledge-of them in common with every one else in the neighborhood, that is notice (Morrow v. Westchester El. R. Co., 30 Misc. Rep. 694 ; Holzhauser v. Brooklyn Heights R. R. Co., 43 id. 145).
Judgment reversed, with -costs, and judgment linanimously directed on the verdict, with costs.
