Campbell v. Resnick

253 A.D. 894, 1 N.Y.S.2d 890, 1938 N.Y. App. Div. LEXIS 9158

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 1938
• Status: Published

Opinion

Action to recover damages for personal injuries sustained by an infant one and a half years of age, while descending, with her mother, a flight of steps in the rear of the house in which they were tenants. The steps were narrow, winding and wide enough to accommodate one person. The mother followed behind the infant, holding the child with one hand and carrying a bundle in the other. The infant fell on the second step from the bottom. The only defect claimed and testified to was a crack in the board of this step, resulting in an elevation of an eighth of an inch. Giving plaintiff the benefit of the most favorable inferences that may be drawn from her proof, the record shows the defect to be so slight that we hold as matter of law it did not constitute negligence. But even assuming that the defect existed and is sufficient to constitute negligence, the proof fails to show that the defect was the proximate cause of the infant’s fall and injuries. Judgment of the City Court of Yonkers reversed on the law, with costs, and complaint dismissed, with costs. Hagarty, Johnston, Adel, Taylor and Close, JJ., concur.