Boylan v. Brown

Pratt, J. The point made by the defendants, that, “the alleged defect in the construction and condition of the dump being patent and discoverable upon supervisual inspection, the plaintiff’s assignor had the same means of knowledge in regard to it as the defendants; and if it was negligence on the part of the defendants to provide such an appliance for use of the plaintiff’s assignor in unloading the horse and cart, it was also negligence on the part 649 of plaintiff’s assignor to drive the horse and cart on such dump, ”—is good law, and decisive of this appeal. Marsh v. Chickering, 101 N. Y. 396, 5 N. E. Rep. 56; Cahill v. Hilton, 106 N. Y. 512, 13 N. E. Rep. 339; Splittorf v. State, 108 N. Y. 205, 15 N. E. Rep. 322; McQuigan v. Railroad Co., 122 N. Y. 618, 26 N. E. Rep. 13; McGrath v. Walsh, (Com. Pl. N. Y.) 4 N. Y. Supp. 705. But in addition it may be added that there was no adequate proof that the device for dumping here used was not proper for the purpose it was intended to serve. Again, it is doubtful if the nature or condition of this platform either caused or contributed to the accident, but rather that the accident was proximately caused by fright of the horse or unskillfulness of other drivers using the dump at the same time. A nonsuit was properly granted, and the judgment must be affirmed, with costs. All concur.