O'neill v. Goodman Contracting Co. — 153 N.Y.S. 727

Majority

p. 727

O’NEILL v. GOODMAN CONTRACTING CO.

(No. 7411.)

(Supreme Court, Appellate Division, First Department.

June 4, 1915.)

Headnote

Appeal from Trial Term, New York County.

Action by Margaret O’Neill against the Goodman Contracting Company. From a judgment for plaintiff, and an order denying new trial, defendant appeals.

Reversed and remanded.

Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOWLING, and HOTCHKISS, JJ.

Alfred E. Holmes, of New York City, for appellant.

Reuben L. Haskell, of New York City (Joseph A. Burdeau, of New York City, of counsel), for respondent.

Under the charge of the court the jury were instructed that the plaintiff could not recover unless they found that the defendant left a plank that was so defective or broken that her foot and leg went through it. “It was a defective plank, and her leg went through the hole, or she is not in court.” That, therefore, is the law of the case. The finding of the jury that there was such a defective plank, and that the accident occurred in the way described by the plaintiff, is against the overwhelming weight of the evidence.

Such finding, and the judgment and order appealed from, should be reversed, and a new trial ordered, with costs to the appellant to abide the event.