177 N.E. 416 | NY | 1931
Plaintiff, having made a purchase in the defendant's department store, stood at a counter waiting for her change. While standing there, she turned to her right and saw beside her a mechanic and a floor-walker looking at a cash register which was said to be out of order. Then she turned to her left, and gathered up her change which the shop girl had brought for her. In the meantime, the mechanic had gone down on his knees in order to look up into the mechanism, with the result that his legs stretched back upon the flooring of the aisle. Plaintiff, supposing, so she tells us, that he was standing where he stood before, and meaning to go around him, stumbled over his foot. She suffered injuries for which she sues.
We find no evidence of negligence.
The mechanic had been standing by the plaintiff, busy, as she perceived, in the repair of the machine. She had no thought that he had gone away during the moment or two that had passed in the collection of the change. On the contrary, she supposed, so she says, that he was standing where he was before. "I thought I was making a sweep around him standing there." The merest glance would have told her that instead of standing there erect, he was down upon his knees. We do not say that there was contributory negligence on her part in the failure to be more observant of the fact that his attitude had changed. It is quite a different thing to say that there was negligence on his part in the failure to foresee how little observant she would be. *192
The measure of the defendant's duty was reasonable care (Hart
v. Grennell,
The judgment of the Appellate Division and that of the County Court should be reversed and the complaint dismissed with costs in all courts.
LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur; POUND and CRANE, JJ., dissent.
Judgments reversed, etc. *193