Applebaum v. Albrecht — 238 N.Y. 617

Majority

p. 617

Irving Applebaum, Respondent, v. Mathias J. Albrecht et al., Appellants.

Headnote

Negligence — injury from fall from clothes pole — judgment in favor of plaintiff reversed.

Applebaum v. Albrecht, 208 App. Div. 767 , reversed.

(Argued June 5, 1924;

decided July 5, 1924.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 16, 1924, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendants. Plaintiff, while climbing down a clothes pole, into which spikes had been driven for the purpose of climbing, stepped upon an iron rod, which had been placed between the pole and a fence for the purpose of supporting the latter, the end of which rod was inserted into a hole in the pole about one-quarter of an inch deep about three inches above one of the spikes. The iron rod bent under plaintiff’s weight and he fell, receiving the injuries complained of.

Edward P. Mowton for Mathias J. Albrecht, appellant.

Robert P. Beyer and Adolph Waxenbaum, for Fannie Waxenbaum, appellant.

Julian J. Raphael and Samuel R. Robinson for respondent.

We think a reasonable man could not reasonably suppose that the iron rod, appearing as it did, and situated as it was, had been placed in the pole

p. 618

as a substitute for a spike, or that there was any invitation to mount or descend thereon.

The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.

His cock, Ch. J., Cardozo, Pound and McLaughlin, JJ., concur; Crane, Andrews and Lehman, JJ., dissent.

Judgment reversed, etc.