Lomoriello v. Tibbetts Contracting Corp.
| Decision Date | 06 June 1963 |
| Parties | , 191 N.E.2d 916 Vincent LOMORIELLO, Respondent, v. TIBBETTS CONTRACTING CORPORATION, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, Second Department, 18 A.D.2d 911, 238 N.Y.S.2d 188.
Action was brought for injuries sustained when dynamite detonating cap exploded. The plaintiff's 14-year-old son found the cap, to which wires were attached, at site of defendant's road excavation near the plaintiff's home, took the cap home, and left it with a dry cell battery on plaintiff's work bench. The plaintiff thought that the cap was a small electromagnet and touched the wires to the battery, and an explosion resulted.
The Supreme Court, Westchester County, Hugh S. Coyle, J., entered a judgment dismissing the complaint at the end of the plaintiff's case, and the plaintiff appealed.
The Appellate Division reversed the judgment on the law, granted a new trial, and held that jury questions were presented as to whether the defendant negligently lost the cap, whether such alleged negligence was the proximate cause of the plaintiff's injuries, and whether plaintiff was free from contributory negligence.
The defendant appealed to the Court of Appeals.
King, Edwards & O'Connor, White Plains (Henry J. Smith and Donald C. Wilson, White Plains, of counsel), for defendant-appellant.
Robert Hill Nix, New York City (Robert J. McKeever, Port Chester, and Paul A. Crouch, New York City, of counsel), for plaintiff-respondent.
Order affirmed, and judgment absolute directed against appellant on the stipulation, with costs in this Court and in the Appellate Division.
All concur except DYE, FULD and SCILEPPI, JJ., who dissent and vote to reverse and to dismiss the complaint upon the ground that there is no evidence to establish the liability of the defendant.
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...and Explosives, § 32; see also: Lomoriello v. Tibbets Contracting Corp., 18 A.D.2d 911, 238 N.Y.S.2d 188, affd 13 N.Y.2d 736, 241 N.Y.S.2d 864, 191 N.E.2d 916; Bucciarelli v. Rinehart & Dennis Co., 172 App.Div. 968, 156 N.Y.S. 1116; 5 B Warren's Negligence, Explosives, § "One who keeps an e......
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...323, affd. 260 N.Y. 604, 184 N.E. 112; cf. Lomoriello v. Tibbetts Contr. Corp., 18 A.D.2d 911, 238 N.Y.S.2d 188, affd. 13 N.Y.2d 736, 241 N.Y.S.2d 864, 191 N.E.2d 916.) Furthermore, although no exception was taken, consideration should also be given at the new trial to the question of wheth......
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...23 A.D.2d 848, 259 N.Y.S.2d 271; Lomoriello v. Tibbets Contracting Corp., 18 A.D.2d 911, 238 N.Y.S.2d 188, affd. 13 N.Y.2d 736, 241 N.Y.S.2d 864, 191 N.E.2d 916.) Particularly, too, it should be noted that this is a wrongful death action and in such action, it has been held that a plaintiff......
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