Kuykendall v. City of New York

• Decision Date: 20 July 1943
• Citation: 291 N.Y. 547,50 N.E.2d 655
• Parties: James KUYKENDALL, Respondent, v. CITY OF NEW YORK, Appellant.
• Court: New York Court of Appeals Court of Appeals

291 N.Y. 547

50 N.E.2d 655

James KUYKENDALL, Respondent,

v.CITY OF NEW YORK, Appellant.

Court of Appeals of New York.

July 20, 1943.

Appeal from Supreme Court, Appellate Division, First Department, 265 App.Div. 1051, 40 N.Y.S.2d 536.

Action by James Kuykendall against the City of New York to recover damages for personal injuries sustained by plaintiff. The plaintiff while waiting for an elevated train operated by defendant about 10:00 P. M. was jostled by two drunken men so that plaintiff lost his balance and fell to the tracks in front of an oncoming train, which cut off his arm. The defendant claimed that the plaintiff failed to prove such conduct on part of the drunken men on the platform as would create a duty on the ticket agent's part to foresee that they were likely to injure the plaintiff, and to exclude them from the premises as a precautionary measure. The plaintiff contended that the question of defendant's negligence was for the jury.

From a judgment of the Appellate Division, 265 App.Div. 1051, 40 N.Y.S.2d 536, affirming a judgment in favor of plaintiff in the sum of $38,146.70 defendant appeals.

Affirmed.Thomas D. Thacher, of New York City (Paxton Blair and Joseph F. Mulqueen, Jr., both of New York City, of counsel), for appellant.

Louis H. Levine and Abraham L. Kanter, both of New York City (Ralph Stout, of New York City, and Robert McGowan Smith, of Brooklyn, of counsel), for respondent.

PER CURIAM.

Judgment affirmed with costs.

All concur except LEHMAN, C. J. who dissents and THACHER, J., taking no part.