Diamond v. S. C. S. Garage, Inc.

251 A.D. 825, 296 N.Y.S. 638, 1937 N.Y. App. Div. LEXIS 7849

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 1937
• Status: Published

Opinion

In an action to recover damages for personal injuries suffered when the plaintiff fell down an open cellar door on the sidewalk at night, it appeared that the defendant was in control of the premises and had failed to take reasonable precautions to see that the way was safe or to give warning to the traveler of the danger. Judgment dismissing the complaint at the close of the plaintiff’s case reversed on the law and a new trial granted, with costs to appellant to abide the event. The plaintiff made a prima facie case; and it was incumbent on the defendant to show that the condition did not result from its own act but from that of some stranger or intruder, or otherwise to exonerate itself. Hagarty, Davis, Johnston, Taylor and Close, JJ., concur.