266 A.D. 671 | N.Y. App. Div. | 1943
No opinion. Carswell, Johnston and Lewis, JJ., concur; Adel and Taylor, J J., dissent and vote to reverse the judgment and to grant a new trial, with the following memorandum: In our opinion the evidence with respect to the lifeguard device did not describe its construction and operation adequately and was insufficient to support the finding that it was negligently maintained. That issue, on the evidence adduced, should not have been submitted to the jury. Although there was no exception to the court’s charge, there was a consistent attitude of protest on appellant’s part as to the sufficiency of the evidence on that issue. We believe that a new trial is warranted in the interests of justice, inasmuch as the jury may have rested its verdict upon a theory of negligence that was not established.
