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Triay v. Carvel Co, Inc.

Appellate Division of the Supreme Court of New York, First Department
May 5, 1916
172 App. Div. 615 (N.Y. App. Div. 1916)

Opinion

May 5, 1916.

William S. Evans, for the appellant.

Nathan F. Giffin, for the respondent.


The plaintiff, a child six years of age, stumbled over a plank, being one of a number which had been dumped by the defendant in the highway, partly on the sidewalk and partly in the roadway. This pile of lumber constituted a nuisance. ( Lawton v. Olmstead, 40 App. Div. 544; Place v. Delaware, L. W.R.R. Co., 157 id. 24.) It is true that defendant was a contractor for a work of public improvement and that it probably intended to use the lumber in its work, but it had received no permit to place the lumber where it did place it, nor does it appear that any necessity of the work required that it should be so placed and kept for several days. The plaintiff was lawfully using the sidewalk and the evidence made out a prima facie case of liability against the defendant. Whether there was contributory negligence on the part of the child or its mother was for the jury under proper instructions. We certainly cannot say that such negligence appeared from the evidence as matter of law. The judgment and order appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.

CLARKE, P.J., McLAUGHLIN, SMITH and DAVIS, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.


Summaries of

Triay v. Carvel Co, Inc.

Appellate Division of the Supreme Court of New York, First Department
May 5, 1916
172 App. Div. 615 (N.Y. App. Div. 1916)
Case details for

Triay v. Carvel Co, Inc.

Case Details

Full title:VIRGINIA TRIAY, an Infant, by EDWARD J. TRIAY, Her Guardian ad Litem…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: May 5, 1916

Citations

172 App. Div. 615 (N.Y. App. Div. 1916)
158 N.Y.S. 739