126 N.Y.S. 315 | N.Y. App. Div. | 1910
The plaintiff, about nine years of age, sustained personal injuries by a pile of lumber falling upon him. The lumber was piled upon a vacant, uninclosed lot adjacent to a lot upon which the defendant was erecting a building. The action was brought to recover the damages sustained by the plaintiff, on the theory that the defendant had permitted children to play upon the lot, and that the lumber was negligently piled. At the trial, at the close of plaintiff’s case, a motion was made.to dismiss the complaint, which was denied, and thereupon, the defendant rested without offering any evidence. The case was sent to the jury with instructions that if children were accustomed to go upon the lot and the lumber was insecurely piled, and by reason' of that fact fell upon the plaintiff, without fault on his part, then thev'might find a verdict in his favor. He had a verdict, and from the judgment entered thereon and an order denying a motion for a new trial, defendant appeals.
The defendant’s motion to dismiss the complaint should have been granted. The record is barren of any evidence as to who piled the lumber or that it was negligently piled. There is not a ■ sug
The case cannot be brought within the principle of the. so-called turntable cases or attractive nuisance. (Walsh v. Fitchburg R. R. Co., 145 N. Y. 301; Albert v. City of New York, 75 App. Div. 553; Powers v. Owego Bridge Co., 97 id. 477.) And the same rule obtains in other jurisdictions. (Galligan v. Metacomet Mfg. Co., 143 Mass. 527; Vanderbeck v. Hendry, 34 N. J. L. 467; Kelly v. Benas, 217 Mo. 1; Frost v. Eastern R. R. Co., 64 N. H. 220.)
The judgment and order appealed from are, therefore, reversed and a new trial ordered, with costs to appellant to abide event.
Ingbaham, P. J., Laughlin, Millek and Dowling, JJ., concurred.
Judgment and order reversed, n'ew trial ordered, costs to appellant to abide event.