244 A.D. 63 | N.Y. App. Div. | 1935
Plaintiff, Mrs. Cook, has recovered a verdict
against defendant for $285, and her husband has a verdict for $500. The verdicts grow out of an injury which Mrs. Cook received by slipping and falling on the floor of defendant’s store. Taken at its best, and disregarding the evidence produced by defendant, Mrs. Cook’s testimony supports a finding that she slipped on some cottage cheese that had dripped onto the floor from an over-filled pan of cottage cheese that was standing on a counter near an aisle along which she walked in a careful manner.
The duty of defendant was to keep the premises, to which it invited customers, in a reasonably safe condition. (Mona v. Erion, 223 App. Div. 526.)
It has been said by our Court of Appeals that “ Liability does not arise unless the dangerous condition is known, or with the exercise of due care ought to have been known.” (Junkermann v. Tilyou Realty Co., 213 N. Y. 404, 408.)
The only evidence in the record offered to show that defendant knew that the slippery substance was on the floor, or that it had been there for a sufficient length of time so that defendant, in the exercise of diligence, ought to have known it, is found in the testimony of Mrs. Cook. She testified that after slipping and faffing she had a conversation with a man behind the counter. She testified that this man “ had a white coat on,” and “ was arranging the food there.” We will assume that the man was sufficiently identified as one of defendant’s employees. She testified that she told this man that she had slipped on the slippery substance, and had sustained injury and that he had “ better clean it up before someone else falls,” and that the man answered, “ I have told someone to clean it up.” Due objection was made to this conversation, and exception taken to its reception, and an exception was taken to the court’s ruling in denying a motion to strike it from the record, t The sole question on this appeal relates to the propriety of this evidence. We are assuming that the man who said, “ I have told someone to clean it up,” was an employee of defendant, and very likely the one who was responsible for the condition complained of. His subsequent statement was not a part of the res gestee. (Luby v. Hudson River R. R. Co., 17 N. Y. 131; Burke v. Borden’s Condensed Milk Co., 98 App. Div. 219; Burns v. Borden’s Condensed Milk Co., 93 id. 566; Walsh v. Carter-Crume Co., Ltd., 126 id. 229; Vadney v. United Traction Co., 188 id. 365; Clapper v. Town of Waterford, 131 N. Y. 382; Waldele v. N. Y. C. & H. R. R. R. Co., 95 id. 274, reviewing many authorities.)
These authorities hold that had defendant’s employee been called by defendant to testify, and had he denied having made the
The judgments and orders should be reversed on the law and a new trial ordered, with costs to the appellant to abide the event.
All concur. Present — Taylor, Edgcomb, Thompson, Crosby and Lewis, JJ.
In each case: Judgment and order reversed on the law and a new trial granted, with costs to the appellant to abide the event.