Burns v. City of Yonkers

We do not find that the facts on the present trial vary in any important particular from those shown on the previous trial, discussed 83 Hun, 211, 31 N. Y. Supp. 757. That case determined that the plaintiff had a right to go to" the jury on the question of defendant’s negligence. The verdict establishes the liabiltiy of the city. It is entirely clear that the accident resulted from the absence of a fence between the traveled road and the declivity down which the plaintiff went. In the light of the event, it is easy to see that a fence should have been provided. We cannot say the jury are wrong in finding that the necessity of a fence should have been apparent before the accident. There were no errors in the admission of evidence, or in the charge, and the judgment must be affirmed, with costs.

This action was first tried at a circuit at which I presided, and the complaint was dismissed. Upon an appeal to a general term composed of Justices Dykman and Cullen, the judgment entered upon the order dismissing the complaint was reversed, and a new trial ordered. Upon the second trial the plaintiff recovered a judgment, from which the present appeal is taken. The court should adhere to its former decision, unless the facts are essentially different from what they were on the first trial. I do not think they differ to such an extent as to make inapplicable the rule applied in the opinion of Justice Cullen (83 Hun, 211, 31 N. Y. Supp. 757), and I therefore vote to affirm.

DYKMAN, J., dissents.