Pietrantonio v. City of Yonkers

Action to recover for personal injuries and for loss of services. W. P. A. workers engaged in repairing the sidewalks placed some flagstones in an upright leaning position against a concrete retaining wall which adjoins the sidewalk. The bottoms of the flagstones were resting on the dirt strip, and not on the travelled portion of the sidewalk. Plaintiffs gave evidence that the infant plaintiff, who was playing in the vicinity, struck his foot against one of the leaning flagstones, causing it to fall over upon him and injure his leg. The defendant city was sued, and the issues of fact were submitted to the jury in a charge by the court, with which the plaintiffs were satisfied. The jury found for the defendant, and the trial justice set the verdict aside and granted a new trial. Order reversed on the law, with costs, plaintiffs’ motion denied, verdict in favor of the defendant reinstated, and judgment directed to be entered thereon, with costs. The questions of credibility, negligence and contributory negligence were for the jury, and its verdict should not be set aside when there is no indication that it was reached by extraneous or improper considerations, or is not contrary to the evidence or weight of the evidence. Carswell, Adel and Taylor, JJ., concur; Lazansky, P. J., and Hagarty, J., dissent and vote to affirm the order setting aside the verdict in favor of the defendant and granting a new trial, upon the ground that the verdict of the jury is against the weight of the evidence, and the trial justice, therefore, was justified in setting it aside.