25 A.D.2d 732 | N.Y. App. Div. | 1966
Judgment unanimously reversed on the facts and the law and a new trial ordered, with $50 costs and disbursements to abide the event. Plaintiff wife sues for damages for personal injuries resulting from a fall in defendant’s terminal building at Idlewild Airport. Her husband’s action is for medical expense and loss of services. We find there was prejudicial error in the exclusion of testimony. Defendant offered to prove that many thousands of people had traversed the area which plaintiff claimed to be dangerous without any accident. Such evidence is relevant and often persuasive on the question of whether a given condition should be classified as dangerous (Stratton v. City of New York, 190 N. Y. 294; Murray v. City of New York, 276 App. Div. 765; Charanis v. Macy & Co., 257 App. Div. 980). Furthermore, the finding of the jury was against the weight of the evidence. Plaintiff’s testimony as to the condition of the flooring was extremely vague on the vital point, namely, the depth of the alleged crack, and is discredited by her ignorance of the conditions, including the material of which the floor was composed. Defendant’s testimony as to the conditions was supported by the photographs in evidence. Lastly, the verdict was grossly excessive. The injury was a linear fraeture of the second metatarsal with no displacement. A east was applied for 17 days. Medieal expense was $101. There were no significant residuals. The awards
