Maher v. Madison Square Garden Corp. — 242 N.Y. 506

Majority

p. 506

Margaret Maher, as Administratrix of the Estate of Philip Maher, Deceased, Respondent, v. Madison Square Garden Corporation, Appellant, Impleaded with Another.

Headnote

Negligence ■— boy drowned in swimming pool —• insufficiency of evidence to warrant inference of negligence o. part of conductor of pool.

In an action to recover for death through the alleged negligence of defendant, where the evidence shows only that decedent, a boy fourteen years of age, was playing in a crowded swimming pool conducted by defendant on one afternoon and his dead body ' was found in another part of the pool the next morning and that death was caused by asphyxiation, no inference can be drawn that by act or omission of defendant or any of its employees the boy was placed in a position of

p. 507

danger which caused his death or that any greater care by defendant could have averted the accident.

Maher v. Madison Square Garden Corp., 215 App. Div. 653 , reversed.

(Argued January 18, 1926;

decided February 24, 1926.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 9, 1925, affirming a judgment in favor of plaintiff entered upon a verdict.

Walter L. Glenney and Bertrand L. Pettigrew for. appellant.

Leon Sanders and Walter E. Godfrey for respondent.

The evidence establishes that plaintiff’s intestate, a boy fourteén years of age, was drowned in a swhnming pool conducted for profit by the defendant. Though the swimming pool was crowded at the time, apparently no one saw the fatality. We know only that he was playing in the pool one afternoon and his dead body was found in another part of the pool the next morning, and that death was caused by asphyxiation. No inference can be drawn that by act or omission of the defendant or any of its employees the boy was placed in a position of danger which caused hi; death, or that any greater care by the defendant could have averted accident. The judgments should be reversed and complaint dismissed, with costs in all courts.

His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur; Cardozo, J., absent.

Judgments reversed.