Opinion
December 21, 1967
Order, entered on April 12, 1967 in this personal injury action, after a jury trial on the issue of liability, affirmed insofar as it provides that defendant-appellant is liable to plaintiffs for damages to be determined by a jury, with $50 costs and disbursements to plaintiffs. The jury's verdict is amply supported by the record, which clearly demonstrates that the existence of a chase in the pier was not physically impossible. Quite to the contrary, the bricklayer who built the chase, Mr. Palmieri, testified to the dimensions of the pipe, indicating that they were as set forth in the dissent, and stated that the chase was built "to follow the contour of the pipe". Moreover, the pier was constructed so that it surrounded the pipe on only three sides.
We dissent and vote to order a new trial, on the ground the verdict is against the weight of the evidence. The physical facts demonstrate the impossibility of the existence of a chase in the pier. The castiron pipe, which was introduced into evidence, had an inside diameter of 4 inches with an outside diameter of 4 1/2 inches, along with a hub at the end of the pipe which measured 6 1/4 inches at the outer rim. It would be physically impossible to insert a castiron pipe of these dimensions into a chase which obviously was insufficient in size to accommodate it. Plaintiffs' proof showed the chase to be 4 inches by 4 inches.