Lissa v. Goodkind — 57 N.Y. Super. Ct. 60

Majority

p. 60

HENRY LISSA, et al., Appellants, v. EMIL GOODKIND, et al., RESPONDENTS.

Headnote

Negligence—Recovery of damages sought.

If the plaintiffs had adhered to their custom of shutting off the water on plaintiffs’ floor every night, the overflow of water complained of could not have happened. No duty was imposed upon defendants, of taking any precaution to avert the accident, which they could not have expected or foreseen, and under such circumstances there was no negligence on their part. The accident was wholly caused by the negligence of plaintiffs’ servant.

•Before Sedgwick, Ch. J., and O’Gorman, J.

Decided May 6, 1889.

Appeal from a judgment entered in defendants’ favor, upon the direction of a verdict, in an action brought to recover damages for injuries sustained by an overflow of water.

Sol Kohn, attorney and of counsel for appellants.

Rose & Pwtsel, attorneys, and Gibson Putsel of counsel, for respondents.

The learned trial judge in this case, after hearing evidence on behalf of the plaintiffs and of the defendants, directed a verdict in favor of the defendants. •

In the statement made by the judge, of his reason for his ruling, he stated with clearness and precision the defect of the evidence for the plaintiffs, and I see no cause to dissent from his conclusion.

The plaintiffs failed to prove that the defendants,

p. 61

who occupied an upper floor of the building in which plaintiffs and they carried on their respective occupations, knew, or had reason to know or suspect, that plaintiffs had made any permanent change in their custom of shutting off the water on plaintiffs’ floor every night. If that custom had been adhered to on the night of the overflow on defendants’ floor, no overflow there could have taken place. No duty was imposed on them of taking any precaution to avert an accident, which they could not have expected or foreseen. Under such circumstances, there was no negligence on their part, and it was wholly caused by the negligence of the servant of the plaintiffs.

The case did not present a question of conflict of evidence. The great preponderance of evidence was clearly in favor of the defendants, and if the case had been sent to the jury, and they had found a verdict for the plaintiffs, an appellate court would doubtless have directed a new trial. Dwight v. Germania Ins. Co., 103 N. Y. 358 .

The judgment rendered in the case should be affirmed, with costs.

SedgwickÍ Oh. J., concurred.