Callwood v. Consolidated Edison Co. of N.Y.
Decision Date | 28 June 1955 |
Citation | 142 N.Y.S.2d 290,286 A.D. 838 |
Parties | Clifford CALLWOOD, Plaintiff-Respondent, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, Inc., Defendant-Appellant. |
Court | New York Supreme Court — Appellate Division |
James C. Sargent, New York City, of counsel (William F. McCauley, New York City, with him on the brief, Keegan & Clarke, attorneys), for defendant-appellant. Stanley P. Danzig, New York City, of counsel (B. Hoffman Miller, New York City, with him on the brief, David Mindlin, New York City, attorney), for plaintiff-respondent.
Before PECK, P. J., and COHN, BASTOW, and RABIN, JJ.
Judgment appealed from reversed and complaint dismissed with costs upon the ground that plaintiff failed to establish actionable negligence on the part of defendant. There was no credible evidence which established any causal relation between the alleged dripping water from the roof and the ice on the sidewalk.
All concur except BASTOW, J., who dissents and votes to reverse and grant new trial.
I agree with the majority that the judgment appealed from must be reversed but I would order a new trial. Plaintiff has made out a prima facie case if we view the evidence, as we must, in the aspect most favorable to the plaintiff and give the plaintiff the benefit of every favorable inference which can reasonably be drawn from the evidence. De Wald v. Seidenberg, 297 N.Y. 335, 336, 79 N.E.2d 430, 431. There is sufficient evidence in the record from which the jury could reasonably infer that the dripping of the water from the roof was a substantial factor in bringing about the ice condition on the sidewalk. The evidence of causal relation produced by the plaintiff was not 'incredible as matter of law.' Blum v. Fresh Grown Preserve Corp., 292 N.Y. 241, 245, 54 N.E.2d 809, 810. A prima facie case has been made out by the plaintiff and the weighing of all the evidence,...
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