Roberts v. Ausable Chasm Co.

Apr 24, 1975
Versions:47 A.D.2d 979
367 N.Y.S.2d 120
1975 N.Y. App. Div. LEXIS 9463

Appeal from a judgment of the Supreme Court, entered June 7, 1973 in Clinton County, on a verdict of no cause of action and from an *980order of that court denying plaintiffs’ motion pursuant to CPLR 4404. Ausable Chasm, a tourist attraction in Clinton County, New York, is a natural gorge carved through sandstone by the Ausable River. The defendant is a domestic corporation which charges admission for trips through this natural phenomenon. On a clear afternoon in August, 1970, plaintiff, her husband and others, after purchasing admission tickets, commenced the trip which consists in part of a walk along the natural ledges between the river and the steep walls of the gorge and in part by a boat ride through the rest of the chasm. Plaintiff alleges that as she was walking along one of the naturally uneven ledges, her shoe slid into something, knocking her off balance, and she fell and fractured her right wrist. Plaintiff urges that it was error for the court to charge the affirmative defense of assumption of risk. We have examined the charge of the court and the exceptions and requests thereto and find no error in that regard. Just prior to jury selection, the trial court allowed a witness for defendant to correct the transcript of his testimony at an examination before trial held in 1971. A witness may make changes in substance as well as form in an examination before trial (CPLR 3116, subd [a]). While the better procedure would be a motion under CPLR 3116, nevertheless, the trial court has the discretion to allow a party to object to any alleged error in the transcript even though there was a failure to follow proper procedure (CPLR 3103, subd. [a]). All other contentions of the plaintiffs must fall before the well-settled rule that a jury verdict in favor of defendant may not be set aside unless it plainly appears that the evidence so predominates in favor of the plaintiff that a verdict could not have been reached on any fair interpretation of the evidence (Morton v McCasland, 16 AD2d 781). Judgment and order affirmed, without costs. Herlihy, P. J., Greenblott, Main, Larkin and Reynolds, JJ., concur.