Brady v. Village of Herkimer

Judgment and order reversed on the law and facts, without costs of this appeal to either party, and a new trial granted. Memorandum: The plaintiff failed to prove any negligence on the part of the defendant or its employees which was the proximate cause of the infant’s injuries. The latter claims that her fall was caused by a crack in the ice but no proof was furnished as to the size or nature thereof or the length of time it had existed. In this court an attempt was made to sustain the judgment upon the theory that above-freezing temperatures had caused the ice to deteriorate to an extent that it caused one, of the infant’s skates to sink therein. The record is barren of any proof from which such an inference might have been drawn by the jury. Indeed, the only possible inference was that the ice was firm and in places had a bumpy surface. It is not claimed, however, that this condition of the ice caused the fall and resulting injuries. Without passing upon any of these theories of negligence we conclude that the judgment may not stand upon the present record. All concur. (Appeal from a judgment of Herkimer Trial Term for plaintiff in a negligence action. The order denied a motion for a new trial.) Present — MeCurn, P. J., Vaughan, Kimball, Williams and Bastow, JJ. ■