Aucock v. Neisner Bros.

123 N.E.2d 630, 308 N.Y. 41

Opinions

Van Voorhis, J.

The Appellate Division directed that the complaint be dismissed upon the ground that plaintiff failed to establish any actionable negligence upon the part of defendant. We think that this disposition of the action was correct. Plaintiff-appellant fell while descending a flight of three steps leading from the street level to the floor level, immediately inside of the entrance to defendant’s store at 195 Genesee Street in the city of Utica, New York. This short stairway was equipped with railings forming three lanes, any one of which was available to plaintiff for entrance and descent. No defect has been established in this stairway, with the alleged exception of the presence of a gum vending machine located at the top of the stairway at the left-hand side of the left lane as plaintiff entered. This machine occupied enough space so that plaintiff could not reach the left handrail in order to take hold of it while passing the machine. The negligence charged is that the vending machine interfered with plaintiff, causing her to lose her balance as she reached with her left hand for the railing behind it. If there had been a solid wall at the left edge of the steps, there would have been no opportunity to make such a contention as plaintiff asserts here. It is only the suggestion of an implied invitation to take hold of the railing in spite of the obstacle presented by the presence of the vending machine that is at the foundation of her claim. We think that this is too attenuated a theory upon which to base liability in this case.

The judgment appealed from should be affirmed, with costs.