120 N.Y.S. 540 | N.Y. App. Div. | 1909
On the 2d of December, 1903, the plaintiff was a member of a theatrical company giving performances at a theater in the city of Hew York, of which the appellants were the sub-lessees and managers. The dressing room which the plaintiff used was in the basement and was reached from the stage by means of an iron stairway which extended from one side of the stage down about eight steps to a landing, against the wall of the building, and then down from the landing at right angles -about eight steps more. On the afternoon of the day in question a performance was given. After the close of the first act the plaintiff started, to go down these steps to the dressing room to change her costume for the second act, and in doing so she slipped on the first or second step and fell to the landing below, sustaining very serious injuries. This action was brought to recover the damages sustained on the ground that the same were caused by the negligence of the appellants in that they had failed to provide proper lights for the stairway, and also in that they had permitted the steps or treads, which were of perforated' iron, to become smooth and slippery. The plaintiff had a verdict of $5,000, and from the judgment entered thereon and an order denying a motion for a new trial, this appeal is taken.
At the trial some evidence was introduced to the effect that the stairway was insufficiently lighted, but no proof whatever was offered to the effect that this was the cause of of contributed to the accident, the proof conclusively establishing that it was due to the smooth and slippery condition of the steps. The stairway was used by a large number of people, at each performance, and there is sufficient evidence that the perforated iron steps or treads had been worn smooth and were slippery, especially on the edges. The plaintiff testified she had to go up and down the stairway at least twelve times during- each performance and the company had given eight performances a week at the- theater from the previous October thirteenth to the time the accident occurred, and it appeared that at least one other person had slipped and fallen on the stairway during that time.
It certainly cannot be claimed that an iron stairway is any more inherently dangerous than a stairway of marble, and if the plaintiff in the caso' cited could not recover, I do not see how this one can. Here, the plaintiff was .not an employee of the appellants and their duty was simply to keep the building in reasonable repair: In the
But it is- suggested that the Kline case was decided upon the ground that the plaintiff had there’assumed the risk. In the present case, however, the plaintiff had been using the stairs for several weeks, during which time she had gone up and down them several hundred times. She must, therefore, have known of the condition of the stairs and assumed whatever risk there-was attendant upon their use. The situation is even less favorable to her than it was to the plaintiff in the Kline ease, because here the appellants were under no obligation to furnish her with a reasonably safe place to work, but only to use reasonable' care in keeping the building — including the stairway — in repair.
The judgment and order appealed from- must, therefore, he reversed and a new trial ordered, with costs to the appellants to abide event.
Ingraham-, Clarke, Houghton and Scott, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellants to abide event.