Opinion
May, 1928.
Appeal from Supreme Court, Herkimer County.
Present — Hubbs, P.J., Sears, Crouch, Taylor and Sawyer, JJ. On first appeal: Judgment and order reversed on the facts and a new trial granted, with costs to appellant to abide event. On second appeal: Judgment reversed on the facts and a new trial granted, with costs to appellant to abide event.
The judgment entered July 12, 1923, was in favor of the defendant Klipple for no cause of action.
The judgment entered June 26, 1923, was in favor of the plaintiff and against The Village of Ilion upon a verdict for $700.
Plaintiff suffered injuries by coming in contact with a barbed wire fence. The complaint alleged that the place where the fence was erected and where the accident took place was within the limits of a public street and that the accident occurred without negligence on plaintiff's part but through the negligence or wrongful act of defendant Klipple in erecting the fence and through the negligence of the defendant village in failing to remove it after actual or constructive notice of its existence. The learned trial court instructed the jury that to find against the defendant Klipple they must find in addition to the freedom of plaintiff from contributory negligence that the place where the accident happened was a public street, and that the erection of the fence by defendant Klipple was negligent, and to render a verdict against the defendant village they must also find that the fence was there for such time before the accident that the village authorities, in the exercise of care, would have been aware of its existence and had a reasonable opportunity to remove it. The evidence was sufficient to sustain findings favorable to the plaintiff on all these matters. The verdict, however, exonerated the defendant Klipple but condemned the defendant village. No negligence on the part of the village was possible unless there was negligence or wrongful act on the part of Klipple in erecting the fence. The verdict was, therefore, illogical, and its inconsistency necessitates a reversal of the judgment entered on the verdict, and a new trial. The judgment and order should be reversed, with costs as to the appellant village against the plaintiff to abide the event, and with costs to the plaintiff against the defendant Klipple to abide the event. All concur.