Fochtman v. Gilman

In an action to recover damages for personal injuries, the appeal is from a judgment entered on a jury’s verdict in favor of respondent. Respondent was injured when she tripped on an iron gate on property owned in part by appellant. The gate had in some way become detached from its fastenings and was lying partially across a public sidewalk abutting the property. No evidence was presented as to who was actually in possession and control of the property at the time of the accident, and appellant contends that it was incumbent upon respondent affirmatively to prove that the owner had not in fact entirely divested himself of possession and control of the property. Judgment unanimously affirmed, with costs. In bur opinion, it may be inferred from the ownership of real property that the owner was in possession and control thereof so as to render him liable in damages to the user of an abutting public highway for injuries caused by the maintenance of the property in a condition dangerous to the traveling public. It is not incumbent upon the injured party affirmatively to prove that the owner has not in fact so divested himself of such possession and control. Once ownership has been established, the burden is on the owner to show that he has parted so completely with possession and control that he is unable to perform his duty of care towards travelers upon the street. (See Appel v. Muller, 262 N. Y. 278; cf. McCann v. Davison, 145 App. Div. 522.) Present — Wenzel, Acting P. J., Beldoek, Ughetta, Hallinan and Kleinfeld, JJ.