12 A.D.2d 680 | N.Y. App. Div. | 1960
Appeal from a judgment of nonsuit, Supreme Court, Sullivan County. In the course of constructing an access road in Liberty to the Monticello By-Pass the defendant piled rocks in an area about 20 feet around and four or five feet high, partly on the unfinished right of way of the access road and partially on Washington Street. Plaintiff Michael Allen Sehiff, then four years old, and in the charge of his seven-year-old sister, climbed to the top of the rocks and fell. There was no proof that the rocks gave way or created any danger, other than the chance of falling, to a child who climbed up them. No need to climb this pile of rocks with all the surrounding space open to walk in has been demonstrated. The inferential argument pursued by appellants that the pile of rocks barred or interfered with the progress of the children in the roadway is without substance. The photographs and other proof offered by appellants make it clear it would be easy to walk around the pile of rocks. Cases in which a liability has been spelled out in the use of public thoroughfares have depended on some obvious