Moretti v. Gulino

Plaintiff had delivered milk to the rear of appellant’s house in the morning before sunrise, and was leaving the premises through the driveway. His foot caught in the gate stop in the center of the driveway and he was injured. Plaintiff had used the driveway for three months. Judgment, entered on the verdict of a jury in favor of plaintiff, affirmed, with costs. Ho opinion. Carswell, Adel, *1027Nolan and Sneed, JJ., concur; Hagarty, Acting P. J., dissents and votes to reverse the judgment and to dismiss the complaint, with the following memorandum: The rest for the gates in the driveway and on private property, and not on a public sidewalk, is of a type which is ordinarily used. It was not defective. It necessarily projected from the ground about four inches. Plaintiff, a milkman, who availed himself of the driveway, should, reasonably, have anticipated its presence.