Opinion
January, 1932.
Present — Sears, P.J., Crouch, Edgcomb, Thompson and Crosby, JJ.
Judgment and order reversed on the law and a new trial granted, with costs to appellant to abide the event, on the ground that there is no evidence that the fence in question was intended to be used in the way it was being used by the plaintiff at the time of the accident, nor was there any evidence to the effect that the trustee of the school district knew that children so used it, and the plaintiff in so using it was a trespasser; and on the further ground that the error in refusing to charge that the plaintiff could not recover if it was found that the plaintiff was injured on a part of the fence that was not defective, was not cured by the general charge that the plaintiff could only recover on a finding of defendant's negligence in respect to disrepair of the fence. All concur, Thompson and Crosby, JJ., on the latter ground only.