| N.Y. App. Div. | Nov 18, 1940
In an action to recover damages for personal injuries sustained in removing shrubs on the premises of the defendants, his employers, judgment in favor of the plaintiff, entered upon the verdict of the jury, affirmed, with costs. On a previous appeal (Skidmore v. Rosenblatt, 258 A.D. 919" date_filed="1939-12-19" court="N.Y. App. Div." case_name="Skidmore v. Rosenblatt">258 App. Div. 919) we held that the plaintiff had established prima fade proof of negligence on the part of the defendants and reversed a dismissal of the complaint at the close of the plaintiff’s case. This required the question of negligence to be submitted to the jury and we do not find that the present verdict is against the weight of the evidence. Lazansky, P. J., and Carswell, J., concur; Hagarty and Close, JJ., concur on authority of Skidmore v. Rosenblatt (supra), adhering, however, to the view expressed in their dissenting memorandum in that case, namely, that the plaintiff’s own testimony showed that he assumed an obvious risk and that such testimony required a dismissal of the complaint as a matter of law; Adel, J., concurs on the authority of Skidmore v. Rosenblatt (supra).