124 Misc. 163 | N.Y. App. Term. | 1924
This is an action to recover the sum of $1 000 for personal injuries sustained by the plaintiff which were caused, as she alleges, by the defendant’s negligence and by the maintenance of a nuisance in front of its premises. The proof of the plaintiff, so far as material to this appeal, shows that she was leaving the store of the defendant and that as she walked upon the step leading therefrom it collapsed, giving in with her, as a result of which she was physically injured. Her testimony was: “ I was coming out and as I stepped on that
Upon the proofs thus adduced at the trial the court dismissed the complaint. The plaintiff proved a prima fade case and was entitled to go to the jury on the question of negligence. An issue of fact was squarely presented and the trial court was not justified in dismissing the complaint under these circumstances. (Dutton v. Greenwood Cemetery Co., 80 App. Div. 352, 356.) There the court said: “ That when one ' expressly or by implication invites others to come upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit.’ (See, also, Larkin v. O’ Neill, 119 N. Y. 221; Hart v. Grennell, 122 id. 371; Ford v. L. S. & M. S. R. Co., 124 id. 493; Flynn v. Central R. R. Co., 142 id. 439, 445.) ” Within these authorities plaintiff certainly presented sufficient evidence to create an issue of fact as to whether or not the defendant was negligent. This issue should not have been taken from the jury, and it was clearly error to have done so. A consideration of the question of nuisance becomes unnecessary in view of the foregoing.
The judgment dismissing the complaint should be reversed and a new trial ordered, with thirty dollars costs to the appellant to abide the event.
All concur; present, Bijur, Wagner and Levy, JJ.