Opinion
November 21, 1961
Judgment in this personal injury negligence action, dismissing the complaint after trial, notwithstanding the verdict for plaintiff, reversed on the law and the facts and a new trial ordered in the exercise of discretion, with costs to abide the event. While there may have been grounds for regarding the verdict as against the weight of the credible evidence, such conclusion would not warrant dismissal of the complaint. An issue of fact was tendered whether the ski-tow and the path followed by the skiers in using the tow were properly operated and maintained. Plaintiff testified that after he fell, due to a rut in the path, the towrope continued to move upward for a "minute or two" before it caught in his equipment and dragged him along for some distance. A question of fact was at least presented whether the towrope operator was negligent in failing to stop the rope sooner. Moreover, because a new trial is required it should be noted that it was error to exclude expert testimony concerning the custom and practice of other ski-tow operators in guarding against accidents of this kind ( Berman v. H.J. Enterprises, 13 A.D.2d 199, 201-202; Levy v. Cascades Operating Corp., 176 Misc. 373, 379-380, revd. on other grounds 263 App. Div. 882, revd. on other grounds 289 N.Y. 714; Richardson, Evidence [8th ed.], § 192).
I dissent and vote to affirm on the grounds that there is no proof of negligence on the part of the defendant or any showing of a breach of duty which caused or contributed to the accident.