Heath v. Metropolitan Exhibition Co.

11 N.Y.S. 357, 33 N.Y. St. Rep. 828, 58 Hun 604, 1890 N.Y. Misc. LEXIS 745

• Court: New York Supreme Court
• Decided: October 24, 1890
• Status: Published

Opinions

Daniels, J.

The plaintiff, while a visitor on premises leased by the defendant to the American Athletic Club, was seriously injured by slipping upon a slat walk between the dressing-room and bath-room, and accidentally passing his hand and part of his arm through a glass door, which was leaning against the partition at the side of the walk. He had taken a bath, and was apprehensive that another person in the room was about to throw water upon him from a pail, and to avoid that stepped quickly along the walk, and, after taking three or four steps, slipped and sustained this injury. But the facts that the door was there; and that he sustained this injury from his hand passing through the glass, were not of themselves sufficient to maintain this action. It was necessary for the proof to go further for that object, and to establish the fact that it was a negligent act to permit the door to be there, supported in this manner; but no proof was given showing that there was any reason whatever for expecting any injury to arise out of the act of placing or keeping the door in that position. It manifestly did not overreach upon the walk so as to diminish its sufficiency, and it was no obstacle in the way of persons passing and repassing along the walk. It was not in the way of any person using the walk, and if the plaintiff had not slipped and fallen towards it no harm could have come to him from it. There was no want of care in the failure to anticipate that the door where it was might become a source of danger. On the contrary, it could very well be assumed that it could not, in its position, be even a possible source of danger to any person passing along the walk. Xo such want of care was proved against the defendant as was required to maintain the action. The evidence was also fatally defective in another respect. It did not prove that the door had been placed where it was by the defendant. The privileges granted to the American Athletic Club were derived from a lease made by the defendant to the club on the 10th of March, 1884, and the accident occurred on the 23d of the following month of August. There was no proof that the door was in this position when the lease was made. The most that the evidence tended to prove was the guess of the witness Dudley Van Holland that it had been in this place through the summer. The witness Edward J. Bynce had seen it several times before the accident, but how long before he did not state; and Samuel Baum testified that he had seen it there probably a month before the accident. Ho further proof on this subject seems to have been given, and it failed, therefore, to establish the. fact that any act of the defendant had contributed to the production of this injury. In each respect there was a failure to make out any liability on the part of the defendant, and the complaint was rightly dismissed. The judgment should be affirmed. Van Brunt, P. J., concurs.