Ward v. New York State Electric & Gas Corp. — 290 N.Y. 325

Majority

p. 325

Lizzie Ward, as Administratrix of the Estate of Stanley C Ward, Appellant, v. New York State Electric & Gas Corporation, Respondent.

Argued March 9, 1943;

decided April 15, 1943.

p. 327

George A. King and A. J. Rodenbeck for appellant.

p. 328

A. H. Harpending for respondent.

We agree with the Appellate Division that there is no testimony in this record to support a jury finding that defendant failed to comply with a definite notice or warning that the wires had to be removed before a fixed date. However, it was still a question of fact for the jury as to whether under all the circumstances defendant had reason to anticipate that the crane might come into contact with the wires and as to whether defendant’s failure thereafter to remove the wires was negligent.

The judgments should be reversed and a new trial granted with costs to the appellant to abide the event.

Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur; Lehman, Ch. J., dissents and votes to affirm.

Judgments reversed, etc.