223 A.D. 526 | N.Y. App. Div. | 1928
Plaintiff entered defendants’ store as a customer and claims that while there she slipped on a patch of oil “ about the size of a grapefruit ” and fell, receiving the injuries for which she has judgment.
She says that on entering the store she proceeded down one of the aisles to a small room at the rear where music rolls were kept. Having procured one of these, she started to leave the store by the same route and had gone but a short distance when the accident occurred.
None of defendants’ employees were at the point of the accident but some of them heard the fall and came to her assistance. She was helped to arise and seated in a chair. She then, for the first as she says, noticed this spot of oil about two feet in front of her on the floor, with a streak running through it and extending for about a yard, indicating where her heel had slipped. She also describes this spot as being about a tenth of an inch in depth.
It appears that the store is maintained for the sale of pianos, victrolas and similar merchandise; that its floor is of maple and that from time to time is oiled, apparently for the purpose of preventing floating dust. Defendants use for that purpose a certain preparation manufactured especially to accomplish that end and at the same time to avoid a slippery surface from remaining on the floor.
The undisputed evidence is, that the last time this oil was applied was somewhere from two to four weeks before the plaintiff’s fall, when, after its application, it was mopped perfectly dry. A number of witnesses were called in behalf of defendants, some of whom were, and others had been, employees of the store and all of whom testified that there were no pools of oil upon the floor at the time of the accident but that on the contrary same was entirely dry and not slippery.
Those who assisted Mrs. Mona had their attention particularly directed to the place of the accident and stated that they examined the floor carefully; that not only was there no such spot of oil as she describes but that the floor was dry and upon testing it with their feet they found it not to be slippery and were unable to discover any reason why she should have fallen.
The measure of defendants' duty is that of reasonable care and
We do not understand that the case of Moore v. Mohican Company (184 App. Div. 962) runs counter to the conclusion we have reached in the instant appeal. There the question presented was as to the suitability of the oil used by defendant on its floors and the method of application. This plaintiff complains, not of the general condition of the floor or of the kind of oil used, but of a single and isolated spot of oil upon a floor otherwise in reasonably safe condition.
Defendants’ motion for a direction of a verdict in their favor should have been granted and the judgment cannot be permitted to stand. Inasmuch as a new trial must be had we should perhaps also say that we find nothing in the case which would make the testimony of the witness Loichinger competent. Doubtless evidence of previous accidents at about the same place from the same or similar causes is competent in actions of this character, and possibly
Other alleged reversible errors are called to our attention but it seems unnecessary to go further.
The judgment and order should be reversed on the law and the facts and a new trial granted, with costs to appellants to abide the event.
All concur. Present — Hubbs, P. J., Clark, Sears, Taylor and Sawyer, JJ.
Judgment and order reversed on the law and facts and a new trial granted, with costs to appellants to abide event.