Adress v. Mormando

243 A.D. 451, 277 N.Y.S. 727, 1935 N.Y. App. Div. LEXIS 7092

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 1935
• Status: Published

Opinions

Untermyer, J.

Plaintiffs’ intestate, employed by one of the tenants in a factory building owned and operated by the defendant, respondent, was crushed and killed by a motor truck passing through an arcade or driveway constructed in the building. At the time of the accident she was standing on a narrow walk or ledge, adjacent to the driveway in the arcade. From evidence offered by the plaintiffs the jury could have found that during the noon hour the factory workers employed in the building were accustomed to occupy both the walks and the driveway with the consent of the owner of the premises. There was evidence that during that hour vehicles were ordinarily excluded from the arcade and that in the past when it had been necessary for a vehicle to leave the building it was preceded by an employee of the building who would warn persons in a position of danger. There was also evidence that on the occasion of this accident, which occurred during the noon hour, no such warning was given. Under these circumstances, if the jury found that plaintiffs’ intestate was in the position which she occupied with the implied consent of the owner, the question whether that defendant had discharged its duty to exercise ordinary care for her protection should have been submitted to the jury as an issue of fact. (Meisle v. N. Y. C. & H. R. R. R. Co., 219 N. Y. 317; Jameson v. Keystone Warehouse Co., 210 App. Div. 212.) (See, also, Wolcott v. N. Y. & L. B. R. R. Co., 68 N. J. L. 421; Zwickl v. Broadway Theatre Co., 103 id. 604.)

The judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.

McAvoy and O’Malley, JJ., concur; Martin, P. J., and Merrell, J., dissent and vote for affirmance.