60 N.Y.S. 966 | N.Y. App. Div. | 1899
The defendant is a corporation organized under the laws of the State of New York for the purpose'of conducting amusement enterprises at Bergen Beach, borough of Brooklyn. On the 12th day of April, 1898, the defendant entered into a contract in writing with one McOroy to give a series of balloon ascensions, agreeing to pay McCroy ten dollars per week with five dollars additional for each successful ascension. The defendant agreed to furnish the balloon, fuel and all necessary appliances, together with helpers and attendants. These balloon ascensions were made from an inclosure somewhat apart from the other features of the place, and this inclosure
We discover no reversible error in the case. The defendant was unquestionably in the control of the grounds during the time that the balloon was being prepared for ascension, and the plaintiff, under tlie proof, was invited within the inclosure. Whether lie was in a position of danger, without hindrance or warning on the part of the defendant, was a question upon which the evidence ivas conflicting, and the determination of the jury must be final. On the question of the carelessness of the erection, guying and maintaining of the pole, there was evidence from which the jury might properly infer that there was carelessness, and the verdict .shows that they did so find. The evidence was uncontradicted that the cleat to which the rope was fastened, and. the breaking away of which caused the acci
The learned trial court charged the jury that the negligence of the defendant, if there Avas any negligence, “ seems to have been either in not fastening the cleat originally Avith the firmness demanded for the strain which might be expected to come upon it, or in allowing it by the daily straining upon it to fall into a condition of weakness where it was not able to resist the,strain which would naturally come upon it.” The defendant’s counsel excepted to this charge, and asked the court to charge that “ if this pole in question and the guy rope, and, the cleat that was nailed to the post were safe for the purpose for Avhieh they were intended, and were sufficient to bear the weight which would ordinarily be put on them, and if they were pulled doAvn by reason of third persons leaning upon the pole and upon the guy rope, the plaintiff cannot recover.” This request was refused, with the modification by the court that,, “unless they were pulled down at the very moment by some third' person. The question really is whether they were strong enough to bear what strain the defendant had a right to anticipate would be put on them.” To this defendant’s counsel also excepted. If the evidence had disclosed that the balloon was in a distinct inclosure, operated entirely by the defendant’s employees, and that proper efforts had been made to exclude the plaintiff from a position of danger, there '
The judgment and order appealed from should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.