Opinion
November 30, 1936.
Judgment dismissing the complaint at the close of the whole case reversed on the law and a new trial granted, with costs to appellant to abide the event. Plaintiff was a patron at defendant's amusement park. While riding a mechanical horse, the horse came in contact with an iron pipe placed on the rail on which the horse traveled and the horse collapsed and plaintiff was injured. The case was tried on the theory that the doctrine of res ipsa loquitur applied. Defendant offered proof that the pipe was inserted through a picket fence by boys who were on the street abutting the raceway. The court dismissed the complaint on the ground that there was no proof of any defect in the construction of the horse. We believe it was for the jury to say on all the evidence whether or not defendant was negligent, and it was error for the court to hold as matter of law that defendant was not negligent. Lazansky, P.J., Young, Johnston, Adel and Taylor, JJ., concur.