Schrager v. Foster — 181 A.D. 923

Majority

p. 923

Rebecca Schrager, an Infant, etc., by Bernard Schrager, Her Guardian ad Litem, Respondent, v. Roger Foster, Appellant.

Headnote

Negligence —facts found contrary to evidence.

Appeal from a judgment in favor of the plaintiff, entered in the New York county clerk’s office March 27, 1917, upon the verdict of a jury, and also from an order entered December 22, 1916, denying a motion for a new trial.

The action was for damages resulting from a fall of an iron chimney-top from the roof of a building owned by defendant. The case was submitted to the jury upon a charge consented to by the plaintiff that the latter could not recover unless the jury found that the injury was caused by a fall of the chimney-top immediately from the chimney upon her. Since the jury returned a verdict in favor of the plaintiff it must have found that the chimney-top did so fall. This finding was, as we consider, directly contrary to the physical facts established by uncontradieted evidence. The verdict was consequently against the weight of the evidence and the judgment and order appealed from must be reversed and a new trial granted, with costs to appellant to abide the event. Clarke, P. J., Laughlin, Dowling and Shearn, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellant to abide event.