Brito v. City of New York , 254 A.D. 896 ( 1938 )

Judgment for defendant, entered upon the verdict of a jury in an action to recover for personal injuries suffered by the plaintiff by coming in contact with a submerged post while bathing, reversed on the law and the facts and a new trial granted, with costs to the appellant to abide the event. It was error for the court to permit the employee of the defendant to testify to the conelusory fact that the beach was not open to the public for bathing. It was also error to submit the case to the jury upon the theory that because life ropes were not up and life guards employed and catamarans in use, the plaintiff assumed the risk of a hidden danger. It was also error, under the facts in this case, for the court to refuse the plaintiff’s request to charge at folio 295 of the record. Lazansky, P. J., Davis, Johnston, Adel and Close, JJ., concur.