Smith v. Salop

Judgment for plaintiff in the sum of $4,325 and costs, recovered in an action for personal injuries sustained by reason of the alleged negligence of the defendant in improperly constructing a covering over a trench situated in a courtyard of premises of which the plaintiff was caretaker, affirmed, with costs. No opinion. Lazansky, P. J., Young and Johnston, JJ., concur; Hagarty and Taylor, JJ., dissent and vote for reversal and a new trial, being of opinion that it was incumbent upon the plaintiff to show that the covering was constructed in such a manner that plaintiff, in-the exercise of his senses, was justified in believing that he could walk upon it with safety, and, further, that an invitation, express or implied, had been extended to him so to do, or that it was necessary in the course of his duties to make such use of the covering. In these respects the plaintiff’s proof is deficient.