267 A.D. 914 | N.Y. App. Div. | 1944
Appeal by permission from an order of the Appellate Term reversing on the law a judgment of the Municipal Court in favor of plaintiff and dismissing the complaint, and from the judgment entered pursuant to said order. Order of the Appellate Term reversed on the law and the facts, the judgment entered thereon vacated, and the judgment of the Municipal Court in favor of plaintiff affirmed, with costs in all courts. We find that the infant plaintiff did not assume the risk as a matter of law. There was an express invitation to plaintiff, held out by defendants, to place her coat in the dressing room and thus yield her personal vigilance during her working hours. There was a bailment for the mutual benefit of plaintiff and defendants. (Labor Law, § 379, as implemented by rule 159 of the Rules of the New York State Industrial Board; 4 Williston on Contracts [Rev. ed.] p. 2904.) There was a consequent duty upon defendants to deliver the coat on demand or to account for its absence. Their failure to do either is prima facie evidence of negligence. (Claflin et al. v. Meyer, 75 N. Y. 260, 262.) In any event, there was a question of fact as to whether the defendants exercised the degree of care required, and the finding of the trial court is not against the weight of the evidence. (Bunnell v. Stern et al., 122 N. Y. 539.) Close, P. J., Hagarty, Carswell, Johnston and Aldrich, JJ., concur.