Perez v. Frazee

Appeal from a judgment of the Supreme Court which dismissed the complaint, in a negligence action, at the close of the plaintiffs’ case. There were apparently alternate ways of access to the trailer which plaintiffs occupied and plaintiff wife chose to walk on a way or rutted track made by vehicles traversing the farm pasture, and in so doing fell and was injured. The existent conditions were apparent when plaintiffs’ occupancy began. In a recent case similar to this, although the facts were markedly stronger in plaintiff’s favor than here, we affirmed a nonsuit, remarking upon plaintiff’s acceptance of the “practical necessities” of the physical situation and holding “ unrealistic and unreasonable ” plaintiff’s contention that defendant was required to maintain its private road “ clear of all hazards to pedestrians resulting from its normal, necessary and intended use and from the vagaries of Winter weather.” (Denning v. Pioneer Trailer Sales, 20 A D 2d 846, 847.) Judgment affirmed, without costs. Gibson, P. J., Herlihy, Reynolds, Taylor and Aulisi, JJ., concur.