Nevins v. Steeplechase Amusement Co. , 248 A.D. 606 ( 1936 )

Action to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of the defendant in the erection and maintenance of an amusement device. Judgment for plaintiff and order denying motion for a new trial affirmed, with costs. No opinion. Lazansky, P. J., Young and Taylor, JJ., concur; Hagarty and Carswell, JJ., dissent and vote-for reversal and a new trial. In our opinion it was essential for the jury to consider the element of the tilting of the gondola on the incline and to find that it required an effort to maintain stability, to the end that defendant should have anticipated that one of the public whom it had invited was likely to fall in an unsuccessful attempt to keep his balance, together with the failure to maintain a barrier or chain across the aisle, as well as the other circumstances, in determining the question of negligence. The jury was charged that “ plaintiff is not obliged to show that defendant’s negligence started Nevins’ fall.” This request is cryptic, but we are of opinion that the jury were entitled to understand thereby that they need not consider a relationship between the tilting of the gondola and the fall, and that even if the gondola were level as well as stationary, recovery might be had for the omission, alone, of a chain or barrier. In that respect, we deem the charge to have been erroneous and prejudicial.