Skidmore v. Rosenblatt

In an action to recover damages for personal injuries sustained by plaintiff in moving shrubs on the premises of defendants, his employers, judgment in favor of defendants, entered on a dismissal of the complaint at the close of plaintiff’s case, reversed on the law and a new trial granted, costs to abide the event. There was prima facie proof of negligence on the part of defendants in failing to provide a sufficient number of workmen to perform the work safely. (Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y. 368; O’Connall v. Thompson-Starrett Co., 72 App. Div. 47; Farley v. White Engineering Co., 131 id. 228; Dair v. New York & P. R. Steamship Co., 139 id. 751; revd. on other grounds, 204 N. Y. 341.) Lazansky, P. J., Carswell and Johnston, JJ., concur; Hagarty and Close, JJ., dissent with the following memorandum; We agree with the majority that there was prima fade proof of negligence. We, nevertheless, dissent and vote to affirm the judgment on the ground that the plaintiff showed by his own testimony that he assumed an obvious risk and that such testimony required a dismissal of the complaint as matter of law where the action was not brought under the Employers’ Liability Law. (Collelli v. Turner, 154 App. Div. 218; affd., 215 N. Y. 675.)