
    David Frieze, Plaintiff, v. Philip Rosenthal and Another, Doing Business, etc., Defendants.
    Supreme Court, Bronx County,
    May 23, 1933.
    
      E. Z. Berman, for the plaintiff.
    
      Terence J. O’Gorman and Sydney Weitzer, for the defendants.
   Dore, J.

Plaintiff claims that while he was running at top speed

from third base to home plate in a baseball game on a diamond maintained in connection with a country hotel in Sullivan county, after he had traversed about two-thirds of the distance toward home plate he felt his foot strike something, was forcibly thrown, and sustained the serious injuries claimed, and that only immediately after he fell did he see what he had tripped over, a large rock seven or eight inches long and approximately four or five inches wide, protruding from the ground three or four inches and surrounded and concealed by grass. Defendants claim that the base line was level and flat and without any such obstruction as claimed between third base and home plate and that the plaintiff was injured while attempting to slide to home plate. Plaintiff himself testified that the base paths were well defined and that as he stood at home plate he could see the paths or base lines to the various other bases. One of plaintiff’s own witnesses and a participant in the game, who stated that he had been on the side lines between third base and home plate and had run to plaintiff’s assistance immediately after he fell, testified that one could easily see the base lines from third base to home plate and that he did not know if there was a rock there; that it might have been there but that he “ did not see it.” On plaintiff’s own testimony the alleged obstruction, if it existed as claimed, two-thirds of the way from third base to home plate, was obvious to any one standing at home plate who used his eyesight if the base paths were as plaintiff admits well defined.”

On plaintiff’s own testimony and on the doctrine of the assumption' of obvious risks, which is applicable to the facts of this case, the motions to set aside the verdict and to dismiss, on which decision was reserved without objection, are granted, and the verdict is set aside and complaint dismissed, with appropriate exceptions to the plaintiff. Thirty days’ stay is granted and sixty days to make a case.  