WARD v. NEW YORK STATE ELECTRIC GAS CORP., 290 N.Y. 325 (1943)

49 N.E.2d 159

LIZZIE WARD, as Administratrix of the Estate of STANLEY C. WARD, Appellant, v. NEW YORK STATE ELECTRIC GAS CORPORATION, Respondent.

Court of Appeals of the State of New York.Argued March 9, 1943
Decided April 15, 1943

Appeal from the Supreme Court, Appellate Division, Fourth Department, GILBERT, J.

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[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

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George A. King and A.J. Rodenbeck for appellant.

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A.H. Harpending for respondent.

Per Curiam.

We agree with the Appellate Division that there is no testimony in this record to support a jury finding that defendant failed to comply with a definite notice or warning that the wires had to be removed before a fixed date. However, it was still a question of fact for the jury as to whether under all the circumstances defendant had reason to anticipate that the crane might come into contact with the wires and as to whether defendant’s failure thereafter to remove the wires was negligent.

The judgments should be reversed and a new trial granted with costs to the appellant to abide the event.

LOUGHRAN, FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur; LEHMAN, Ch. J., dissents and votes to affirm.

Judgments reversed, etc.

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