Cassin v. J. J. Newberry Co.

271 A.D.2d 1038

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 5, 1947
• Status: Published

Opinion

Appeal by plaintiff from an order of the Trial Term of the Supreme Court, Saratoga County, setting aside a verdict in plaintiff’s favor, dismissing her complaint on the merits, and from the judgment entered thereon. Defendant conducts a retail department store on Broadway in the city of Saratoga Springs, to which there are two entrances, namely, a north and south entrance. On November 29, 1944, at about 1:20 p.m. plaintiff entered the south entrance of this store for the purpose of purchasing merchandise. While walking toward the counter she said that her feet went out from under her and that she fell and sustained serious injuries. She gave no other explanation of the fall. The sole ground of negligence is that the floor was improperly' constructed. The floor between the counter and the front entrance is not uniform. There is a three and five-eighth, inch difference between the counter and the front door. The proof shows that for a .distance of seven feet there is a pitch in the floor and that there is a difference of three and one-eighth inches between the floor at the base of the counter where plaintiff was standing and the floor at the entrance. The proof also discloses that the sloping per foot is one-half inch and that for every foot of the seven feet in question there is a decline of one-half inch. No other question was submitted to the jury. No actionable negligence on the part of defendant was established. (Miller v. Gimbel Bros., Inc., 262 N. Y. 107; Guexcio v. New York Lerner Go., 63 N. Y. S. 2d 664; Avignone V. Sixcorn Realty Gorp., 296 N. Y. 708.) Judgment and order affirmed, without costs. All concur.