Opinion
December 16, 1965
Appeal from the Monroe Trial Term.
Present — Williams, P.J., Bastow, Goldman, Henry and Marsh, JJ.
Judgment and order affirmed, without costs of this appeal to any party. All concur except Williams, P.J., and Bastow, J., who dissent and vote to reverse and to grant a new trial in the following Memorandum: The findings implicit in the verdict of the jury that plaintiff's intestate was contributorily negligent or that defendant was not negligent are against the weight of the evidence. Moreover, it was error to exclude the proffered testimony that on no prior occasion through the years had the sheets of metal stacked under the windows fallen. The precipitous ruling of the trial court sustaining an objection to the first question by plaintiff's counsel that related to this subject effectively foreclosed full exploration thereof. "By the great weight of modern American authority a custom either to take or to omit a precaution is generally admissible as bearing on what is proper conduct under the circumstances, but is not conclusive. Such evidence, coupled with testimony that the custom was observed, may be offered to show due care." (2 Harper James, Law of Torts, § 17.3; see, also, Shannahan v. Empire Eng. Corp., 204 N.Y. 543, 550.)