Fitzwater v. . Warren
New York Court of Appeals
Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 6, 1910, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial. The nature of the action and the facts, so far as material, are stated in the dissenting opinion. Plaintiff assumed an obvious risk. (Dillon v. Nat.
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Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 6, 1910, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial. The nature of the action and the facts, so far as material, are stated in the dissenting opinion. Plaintiff assumed an obvious risk. (Dillon v. Nat. C. T. Co., 181 N. Y. 215; Knisley v. Pratt, 148 N. Y. 372; Millerick v. Wing, 133 App. Div. 453; Buckley v. G. P. & R. Mfg. Co., 113 N. Y. 540; Toye v. U. D. B. Co., 141 App. Div.…
1Opinion of the Court
Cullen, Ch. J.
I think the order of the Appellate Division reversing the judgment of nonsuit at Trial Term and granting a new trial should he affirmed. It is conceded that the defendants violated the statute of this state which enacts that all setscrews shall be guarded and that as a result of that violation of law the plaintiff was injured. The defendants seek to be relieved from the consequences of their wrongdoing on the claim that the plaintiff assumed the risk of them illegal act because he saw and knew of the existence of the -unguarded setscrew. My personal opinion on this subject is…
2Cases cited5 opinions
- Davidson v. . CornellNew York Court of Appeals · 1892
- Dowd v. New York, Ontario & Western Railway Co.New York Court of Appeals · 1902
- Knisley v. . PrattNew York Court of Appeals · 1896
- Johnston v. . FargoNew York Court of Appeals · 1906
- Simpson v. New York Rubber Co.New York Supreme Court · 1894
3Cited by43 opinions
- Martin v. HerzogNew York Court of Appeals · 1920
- Dewey Portland Cement Co. v. BluntSupreme Court of Oklahoma · 1913
- New York, N. H. & H. R. v. VizvariCourt of Appeals for the Second Circuit · 1913
- Kaplan v. 48th Avenue Corp.Appellate Division of the Supreme Court of the State of New York · 1943
- Osborne v. Salvation ArmyCourt of Appeals for the Second Circuit · 1939
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