142 N.Y.S. 625 | N.Y. App. Div. | 1913
There is no evidence, of the cause of the fall of the gate which struck and injured plaintiff. There is some suggestion that the wind was blowing upon the day that it fell, but there is no evidence as to the force thereof, nor that it was blowing at the particular time when the accident occurred. A gate placed in the position in which the evidence on the part of plaintiff’s witnesses shows this gate was placed, would remain indefinitely in that position, held by its own weight and by the force of gravity, unless interfered with. There is no evidence of the nature of such interference or defendant’s responsibility therefor. The order granting a new trial in this action should be reversed, and the direction for a nonsuit sustained, and judgment directed in accordance therewith, with costs of the action and of this appeal. Present—Jenks, P. J., Burr, Carr, Rich and Putnam, JJ. Order reversed, direction for nonsuit sustained, and judgment unanimously directed in accordance therewith, with costs of the action and of this appeal.