Summary
In Johnston, the Court found that "the jury was free to find that plaintiff had left a place of safety, with defendant's knowledge, in order to help defendant find his ball, and after it was found, was struck without warning when defendant played the recovered ball."
Summary of this case from Herman v. WeisnerOpinion
Submitted May 15, 1950
Decided June 2, 1950
Appeal from the Supreme Court, Appellate Division, First Department, DINEEN, J.
Archie B. Morrison, Daniel Miner, John D. Lynn and Robert A. Dwyer for appellant.
Robert Hoffman and Samuel S. Kolman for respondent.
Judgment affirmed, with costs. On this record, the jury was free to find that plaintiff had left a place of safety, with defendant's knowledge, in order to help defendant find his ball, and, after it was found, was struck without warning when defendant played the recovered ball. No opinion.
Concur: LEWIS, CONWAY, DYE and FROESSEL, JJ. LOUGHRAN, Ch. J., DESMOND and FULD, JJ., dissent on the ground that plaintiff, as a participant in the game, assumed the ordinary risks thereof, including the risk of an accident such as this.