SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
July 1, 1969
DONALD W. RUTHERFORD, APPELLANT,
N & R EQUIPMENT CORPORATION, RESPONDENT
Appeal by plaintiff (1) from a judgment of the Supreme Court of St. Lawrence County, entered September 25, 1967, upon a verdict of no cause of action in favor of defendant, and (2) from an order of said court which denied plaintiff's motion to set aside the verdict.
Greenblott, J. Gibson, P. J., Staley, Jr., Cooke and Greenblott, JJ., concur in memorandum by Greenblott, J.; Aulisi, J., not voting.
Plaintiff was injured when he fell into a two-feet by two-feet hole excavated by the defendant in the course of construction of a sewer in a street in front of his home. The evidence indicates that the accident happened at night when the appellant stepped from the curb to observe rats in the sewer trench. Appellant contends that the trial court committed reversible error in charging the jury that defendant's duty was to refrain or to abstain from inflicting upon the plaintiff or other persons an "intentional or wilful or wanton injury". The appellant contends that the determination of the duty owed to the plaintiff was a jury question and the court committed error in removing this determination from consideration by the jury. A review of the evidence indicates that the court was correct in finding that the appellant was a licensee as a matter of law. (Cf. Finkle v. Zimmerman, 26 A.D.2d 179.) Since there was no evidence or any inference that appellant was a business visitor or invitee to whom respondent would owe a duty of reasonable care, respondent was bound only to refrain from inflicting an intentional or wanton injury. Upon the evidence the jury was entirely warranted in resolving against the appellant the issue of liability. The remainder of appellant's contentions have been examined and are found to be without substance.
Judgment and order affirmed, without costs.
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