Opinion
June 30, 1955.
In an action to recover damages for personal injuries sustained when plaintiff was disembarking from his yacht at defendant's boatyard, defendant appeals from an order entered on a motion to dismiss the complaint, made before submission of the case to the jury and denied after discharge of the jury for inability to agree on a verdict. Order affirmed, with $10 costs and disbursements. The requests to charge as to customary practice and superior knowledge of defendant as factors for the jury's consideration in determining the negligence of the defendant were properly refused. The latter requests assumed there was superior knowledge by defendant as to the danger in getting off the yacht under the existing circumstances. The request as to customary practice omitted any reference to conditions similar to those which the jury might have found existed here. We cannot anticipate what proof will be offered on the new trial. Therefore, we do not pass on the admissibility of evidence as to how persons other than the plaintiff left the yacht. Wenzel, Acting P.J., MacCrate, Schmidt, Beldock and Ughetta, JJ., concur.