Decker v. Brooklyn Strand Theatre Corp.

222 A.D. 752

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1927
• Status: Published

Opinion

Judgment reversed upon the law and the facts, with costs, and complaint dismissed, with costs. We are of opinion that it affirmatively appears from the proof that plaintiff was guilty of contributory negligence as matter of law. (Pattison v. Livingston Amusement Co., 156 App. Div. 368.) Rich, Kapper, Lazansky and Hagarty, JJ., concur; Young, J., dissents, with the following memorandum: Whether or not the plaintiff was guilty of negligence contributing to the injury was a question of fact for the jury. In the circumstances presented she, unacquainted with her surroundings, had the right to assume that the way was safe, and she was not under obligation, as matter of law, to look before she put her foot down. (See Boyce v. Manhattan Railway Co., 118 N. Y. 314, 319.) In the Pattison case plaintiff knew of the conditions. She had been in the theatre before.