Kuechenmeister v. Brown

37 N.Y.S. 95 | N.Y. App. Div. | 1896

Williams, J.:

The trial court erred in taking the case from the jury and dismissing the complaint. The question of the defendant’s negligence should have been submitted to the jury. It is not necessary to determine whether the coal hole in the sidewalk was a nuisance so as to render defendant liable for any damages resulting from its maintenance, regardless of the question of negligence.

It is evident that no accident would have occurred in the absence, of negligence in keeping the cover properly secured. Ho one would have fallen into the hole so long as the cover was kept in its. place by the appliances provided for that purpose. The case may,, therefore, be treated purely as one of negligence, and in this view the question of the defendant’s negligence was clearly for the jury.. If the cover was unsecured and out of its place and the plaintiff fell into the hole, as she testified she did, then certainly the defendant, may be charged with negligence.

It was his duty to keep the cover safely secured in its place, and if, through his own carelessness, or that of his agents or servants, it. was left unsecured and the hole unprotected, then he was guilty of negligence.

The appliances for securing the cover were below the walk in the-premises of the defendant, and the inference might well have been drawn by the jury that the condition of the hole and cover at the time of the accident was due to the act or neglect of the defendant or his agents or servants. Whether the hole was uncovered and the plaintiff fell into it, as she testified on the trial, was a disputed question of fact and should have been submitted to the jury. If the jury credited the plaintiff’s evidence, the inference might well have been drawn that the defendant was guilty of negligence which caused the accident and injury to the plaintiff.

The judgment should be reversed and a new trial ordered, costs, to the appellant to abide event.

Van Brunt, P. J., Barrett, Patterson and O’Brien, JJ.y concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.