De Casiano v. Morgan

308 N.Y. 526 | NY | 1955

Per Curiam.

In the accident which occasioned this negligence action, plaintiff Alicia De Casiano tripped over a loose piece of metal “ nosing ” on the edge of one of the hallway steps in the building where she worked, and fell to the bottom of the long stairway. She had reached for the handrail, she testified, to stop her fall, but could not secure a hold since it was flush against the wall. She and her husband, who joined as a plaintiff to recover for loss of services, obtained a judgment for $1,800 against defendant Rosenblum, the lessee of the entire building, but their complaint against defendant Morgan, the owner, was dismissed, on the ground that no actionable negligence on her part had been established. After a unanimous affirmance by the Appellate Division, plaintiffs now appeal, by permission of this court, from the judgment in both of its aspects.

The building in which plaintiff wife was employed was, concededly, a “ tenant factory,” and, by reason thereof, governed by provisions of the Labor Law requiring the owner, whether or not in possession or control, to provide all stairways “ with proper hand rails ” (Labor Law, §§ 272, 316). “ Handrails,” as distinguished from “ banisters ” or “ railings,” are designed “ osa protection against slipping and falling down the stairs ”. (Cahill v. Kleinberg, 233 N. Y. 255, 259.) In this case, there was evidence that the fall might have been averted were it not for the fact that the handrail was flush against the wall and so designed that a person descending the stairway could not grasp it effectively. Accordingly, whether it was a “ proper ” one, within the meaning of the Labor Law, gave rise to a question of fact that should have been submitted to the jury. Plaintiffs are, therefore, entitled to reversal and a new trial as to defendant Morgan.

However, no basis exists for reversing plaintiffs’ judgment against defendant Rosenblum. That the jury may have awarded less damages than the evidence warranted cannot help plaintiffs, since the adequacy of the verdict is beyond the province of this court to review. (See, e.g., Serano v. New York Central & H. R. R. R. Co., 188 N. Y. 156, 166; Kiff v. Youmans, 86 N. Y. 324, 327; see, also, Cohen and Karger, Powers of the New York Court of Appeals, p. 589.) And, as to the only other asserted errors having any semblance of merit, it is enough to remark that they related solely to the question of defendant Rosenblum’s negligence and liability, and not to the amount of damages. They could not have harmed or prejudiced plaintiffs, for, as the verdict renders manifest, the jury necessarily found such liability to exist; had it concluded otherwise, it could not, of course, have returned a verdict for plaintiffs.

As to defendant Rosenblum, the judgment should he affirmed, without costs. As to defendant Morgan, the judgment should be reversed and a new trial granted, with costs to abide the event.

Conway, Ch. J., Desmond, Dye, Fuld, Fboessel, Van Voobhis and Bubke, JJ., concur.

On appeal from judgment against defendant Rosenblum; Judgment affirmed.

On appeal from judgment in favor of defendant Morgan: Judgment reversed, etc.