217 A.D. 396 | N.Y. App. Div. | 1926
The plaintiff, a practical nurse, had, for many years, occupied a seven-room apartment on the fifth floor of an apartment house at .11 East One Hundred and Nineteenth street in the borough of Manhattan, New York city. The defendant was the owner of the property on the date the plaintiff sustained the injuries in falling upon the stairway in said apartment house leading from her apartment to the floor below. This stairway was in two sections, with a landing between. The plaintiff testified that about two weeks before her accident a carpet, which had been upon the stairs, was removed, and that three or four nails were
The only ground upon which a reversal of the judgment appealed from is asked is that there was no evidence given upon the trial as to the care exercised by the plaintiff in descending the stairs at the time she was injured, with knowledge on her part of the existence of the protruding nails. The plaintiff testified that after she fell she finally regained her feet and by holding onto the banister went downstairs; that when she reached the street she called a taxi and went to the office of her physician, where she received treatment for the injuries resulting from her fall.
In her complaint the plaintiff alleges that “ while carefully proceeding along said hallway and said staircase from her said apartment to the street, without fault or negligencé on her part and solely owing to the aforesaid negligence of the defendant in permitting nails to protrude from the steps, tripped on said defective stairs and fell down one of the stairways.” And, later on, that the occurrence and injuries resulting therefrom were due solely to the carelessness and negligence of the defendant, his agent and servant, “ and was not due to any fault on the part of the plaintiff.” The question presented upon this appeal is as to whether any sufficient evidence was given by the plaintiff that she, at the time of sustaining her injuries, was in the exercise of due care. The plaintiff testified as follows: “I had an appointment with Dr. Moran to be at his office at 9:30. I had a little cold on my
I am of the opinion that the plaintiff’s proofs were insufficient to justify a submission to the jury of- the question of the absence of contributory negligence on plaintiff’s part. All that plaintiff testifies upon the subject is that she “ walked down the first flight all right,” and that then, on the second flight, she caught a nail in her heel and fell over upon her face. The plaintiff knew of the existence of the protruding nails and was required to use a greater degree of care than had she been ignorant of their existence. As showing the exercise of care on the part of the plaintiff, the case is much weaker than that of Broadbent v. N. Y. Evening Journal Pub. Co. (147 App. Div. 133), where the court said (at p. 136): “ It was incumbent upon the plaintiff, before he was entitled to recover, to establish affirmatively that, at the time of the accident, he was using ‘ due care and diligence.’ In other words, was free from contributory negligence. The only evidence he gave on this subject was: ‘ I was walking in the ordinary way; at the ordinary gait.’ This does not meet the legal requirement. With full knowledge of the condition of the passageway, he made no use of the handrail provided by the defendant for the use of its employees to prevent just such accidents, and took no precaution to avoid slipping. He failed to exercise a degree of care commensurate with the condition he knew to exist, and the complaint should have been dismissed at the close of the evidence; ” and is much weaker than the case of Schindler v. Welz & Zerweck (145 App. Div. 532), in which it was said (at p. 534): “ Moreover, the plaintiff failed to prove such care upon the part of his wife as •justified a submission of the question of contributory negligence to the jury. * * - * Her evidence is that she walked along the
At the close of the plaintiff’s case, counsel for the defendant moved for a dismissal of the complaint upon the ground that there had been no proof of any lack of contributory negligence on the part of the plaintiff in the way and manner in which she went down the stairway at the time in question. This motion the court denied, and an exception was duly taken by counsel for the defendant. We think the court erred in denying the defendant’s motion for dismissal of the complaint. From any evidence presented to it, the jury could only speculate as to what care the plaintiff was exercising in descending the stairway, and the verdict in plaintiff’s favor, which could only be predicated upon the fact that when injured the plaintiff was in the exercise of due care, was wholly without evidence to support it.
The judgment and order appealed from should be reversed, and a new trial granted, with costs to the appellant to abide event.
Clarke, P. J., Dowling, McAvoy and Wagner, JJ., concur.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event.