204 A.D. 528 | N.Y. App. Div. | 1923
This action is brought to recover damages for personal injuries. The facts are briefly that plaintiff while riding with her husband in a carriage on one of the residence streets of the village of Potsdam was thrown out and injured shortly before six o’clock on the afternoon of May 14, 1914. A pile of refuse and rubbish consisting of some barrels and boxes, loose cans, an old white porcelain bowl, and a dead Christmas tree had been piled at the side of the street by a citizen, and as plaintiff and her husband were driving along the street the horse became frightened at this pile of refuse, ran away, plaintiff was thrown out and sustained the injuries complained of. This pile of rubbish had been placed in the street in pursuance of the invitation of the village authorities for citizens to do that in. observing what was called “ clean up
This case has been tried three times and the facts were substantially the same at each trial and plaintiff has always been successful. That fact is entitled to great weight in determining whether or not there is evidence to sustain plaintiff’s contentions. (McMahon v. Jacob, 76 App. Div. 346; Gutman v. Weisbarth, 194 id. 351.)
After the first trial the presiding justice set aside the verdict and dismissed the complaint. On appeal to the Appellate Division, Third Department, the judgment dismissing the complaint was reversed and the case was sent back for a new trial. (Lyman v. Village of Potsdam, 173 App. Div. 390.) On the second trial the case was submitted to the jury on the theory of nuisance and the plaintiff again recovered and the judgment was affirmed in the Appellate Division, but by a divided court. (Lyman v. Village of Potsdam, 183 App. Div. 910.) Defendant appealed to the Court of Appeals and the judgment was reversed (Lyman v. Village of Potsdam, 228 N. Y. 398), the court holding that the pile of rubbish in question was not an unlawful obstruction per se and not a nuisance. A new trial was granted, the Court of Appeals holding that plaintiff could not recover without evidence “ (1) that the rubbish pile was so likely to frighten horses of ordinary gentleness that any one of ordinary prudence and sagacity would have appre
On the third trial the case was submitted to the jury on the theory of negligence and plaintiff again recovered, and from the judgment entered on this last verdict defendant appeals.
Three juries having passed on the facts in this case and plaintiff having been successful at each trial and the Appellate Division, Third Department, having passed on the questions involved twice, and finally after the Court of Appeals granted a new trial setting aside the verdict obtained on the second trial and pointing out the propositions plaintiff would need to establish in order to succeed, and on the third trial plaintiff having been again successful on the same facts and there being no errors in rulings or in the instructions to the jury which call for a reversal, it is our opinion that the judgment appealed from should stand.
The judgment and order should, therefore, be affirmed, with costs.
All concur.
Judgment and order affirmed, with costs.