Davis v. Village of Endicott ( 1970 )

Per Curiam.

Appeal from a judgment of the Supreme Court, Broome County, entered on jury verdicts of no cause of action and from an order of the same court denying appellants’ motion to set aside the jury’s verdicts and direct judgment in their favor or, in the alternative, direct a new trial. Appellants seek damages for personal injuries allegedly sustained by appellant Margaret Davis on July 23, 1965 when she fell while being X-rayed at the radiology department of the Ideal Hospital, owned and operated by the respondent Village of Endicott. The sole issue raised here by appellants is whether as a matter of law appellant Margaret Davis was free from contributory negligence. However, the jury could on the instant record have properly premised its determination of no cause of action on the ground that the respondent was not guilty of negligence. And it is clear that appellants took no exception or made any request with respect to the Trial Judge’s charge as to the issue of contributory negligence. Moreover, we could not in any event find in this case that as a matter of law this issue should not have been submitted to the jury. (See Broderick v. Cauldwell-Wingate Co., 301 N. Y. 182, 188.) Judgment and order affirmed, without costs. Herlihy, P. J., Reynolds, Staley, Jr., and Cooke, JJ., concur in memorandum Per Curiam.