James v. Pride Transportation Co.

248 A.D. 779 | N.Y. App. Div. | 1936

In an action brought to recover damages for the death of plaintiff’s intestate in which the trial court, at the close of the entire case, directed a verdict against the plaintiff and in favor of the defendant E. O. Roberts Co., Inc., judgment, in so far as an appeal is taken therefrom, reversed upon the law and the facts and a new trial granted, costs to abide the event. There was evidence in the case that the fence in question was not built by the respondent as provided for in its contract with the city of New York, and that, as a result, the fence that was built by the respondent created a more dangerous situation than would have existed had the plan been followed. In view of this evidence, it was for the jury to say whether the fence so built was an unnecessary and unreasonable' interference with the street, creating a dangerous situation, and whether, if so found, it was a proximate cause of the death of plaintiff’s intestate. (O’Neill v. City of Port Jervis, 253 N. Y. 423.) Lazansky, P. J., Young, Johnston and Taylor, JJ., concur; Carswell, J., dissents.