198 A.D. 57 | N.Y. App. Div. | 1921
The question is whether the plaintiff established her right to go to the jury in this action against the defendant for negligence. Defendant conducts a fruit a,nd vegetable store on one of the public streets in the city of Albany. In front of the store is a broad concrete sidewalk. About eight-thirty o’clock in the morning of January 30, 1920, baskets of fruit or vegetables occupied substantially the entire sidewalk in front of the store. Garbage consisting of vegetable refuse was also scattered over the sidewalk. A basket partially filled with garbage was near the entrance of the store and outside the basket there was also a pile of garbage. About noon of the same day the plaintiff while traveling on the sidewalk in front of the store slipped on some garbage and was caused to fall. At that time also there was a basket of garbage standing near the store entrance and outside of the basket was a pile of the same material. The plaintiff testifies that some of it was spread around and some of it was in the basket and that she stepped on a piece of garbage and fell. There is also evidence that there was ice on the sidewalk but to what extent was a question for the determination of the jury. The plaintiff, however, finally made it plain under persistent cross-examination that it was garbage on which she stepped and fell. Naturally conditions changed with the progress of the business from hour to hour but it would be a permissible inference by the jury that the general condition existing on the sidewalk at the time of the plaintiff’s injury had existed for a sufficient time to charge the defendant with knowledge thereof. We
The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.