Opinion
December, 1935.
Appeal from Supreme Court, New York County.
Present — McAvoy, Merrell, O'Malley, Townley and Untermyer, JJ.; O'Malley and Untermyer, JJ., dissent.
Judgment affirmed, with costs. No opinion. (O'Malley and Untermyer, JJ., dissent and vote to reverse and grant a new trial.)
The jury might have found that the defendant in the exercise of reasonable care was bound to apprehend that injury might happen to one who was precipitated from the so-called "roulette wheel" at the point where plaintiff met with his injury. The side or wall of the slide or exit appearing on plaintiff's Exhibit 3, and against which plaintiff was thrown, while constructed of smooth polished wood, was not padded or protected in any way. While the evidence shows it was built in a partly slanting position, the plaintiff testified that it seemed to him "to be right straight up and down." This conclusion seems to be justified from an examination of Exhibit 3.
I, therefore, dissent and vote to reverse and grant a new trial upon the ground that there was a question of fact to be submitted to the jury.
Untermyer, J., concurs.