| N.Y. App. Div. | Feb 10, 1941
In an action to recover damages for personal injuries suffered by the plaintiff, caused by his falling upon an icy sidewalk, the jury rendered a verdict in favor of the plaintiff in the sum of $400. Thereafter the court decided a motion to dismiss the complaint, upon which it had reserved decision, set the verdict aside and dismissed the complaint on the merits. Judgment reversed on the law and the facts, with costs, verdict of the jury reinstated, and judgment directed to be entered thereon. The accident happened on February 21,1936. There was evidence from which the jury might find that the sidewalk was covered with ice three inches thick and that it was rough, uneven and choppy. There was also evidence that other walks on the same street were clean. The weather report shows that there had been no precipitation for approximately seventy-two hours prior to the accident. This evidence created questions of fact for the jury and it was error for the trial court to set aside the verdict and dismiss the complaint. Adel, Taylor and Close, JJ., concur; Lazansky, P. J., concurs in reversal of the judgment but dissents as to the reinstatement of the verdict and votes to grant a new trial, with the following memorandum: The verdict was rightly set aside because a finding by the jury that respondent had due notice of a dangerous condition was against the weight of the evidence. There should be a new trial; Hagarty, J., dissents and votes to affirm.