Philpot v. Brooklyn National League Baseball Club, Inc. (277 A.D.2d 1135, 1950)

In an action by appellants, who are husband and wife, to recover damages for personal injuries, and expenses and loss of services incidental thereto, it was alleged by plaintiffs that while plaintiff wife was seated in a baseball park, as a spectator, she was struck by a bottle. On trial, plaintiffs did not establish that the bottle was thrown, or dropped, but it was conceded that it was “ precipitated from the tier above, either rolled, dropped, or was thrown”. Judgment in favor of respondents, entered upon the dismissal of -plaintiffs’ complaint at the close of plaintiffs’ evidence, unanimously affirmed, with costs. The evidence adduced was insufficient to establish negligence on the part of respondents, or either of them, which was a proximate cause of the accident and the resulting injuries. (Cf. Senatore v. Marry M. Stevens, Inc., 275 App. Div. 677.) Present — Nolan, P. J., Carswell, Johnston, Sneed and Wenzel, JJ. [See 278 App. Div. 570.]