Leshinsky v. Cohen

262 A.D. 775, 27 N.Y.S.2d 865, 1941 N.Y. App. Div. LEXIS 5812

Opinion

In an action to recover damages for personal injuries, plaintiff appeals from a judgment dismissing her complaint on a reserved motion after the jury disagreed. . Judgment reversed on the law and a new trial granted, with costs to appellant to abide the event. The dismissal was granted because the learned trial justice was of opinion that plaintiff was guilty of contributory negligence as matter of law. Plaintiff was injured by falling on a dangerous outdoor flight of steps, which flight of steps leading from defendant’s boarding house she admitted she knew was dangerous. The rule of Palmer v. Dearing (93 N. Y. 7) and the cases which follow it (including Peil v. Reinhart, 127 id. 381; Dollard v. Roberts, 130 id. 269, 274, and Conway v. Naylor, 222 id. 437) is that, while a person who is approaching or is in the presence of a known danger must exercise more care than would be required of him if he did not know of the danger, the question of his negligence is still for the jury if reasonable minds might differ as to whether he exercised the higher degree of care required. “ The question of contributory negligence ordinarily is a question of fact. It is only when there is no dispute upon the facts and only one conclusion can be drawn therefrom that it may be decided as a question of law.” (Nelson v. Nygren, 259 N. Y. 71, 76.) On the evidence in this case, reasonable minds might differ as to whether the plaintiff was guilty of contributory negligence. Lazansky, P. J., Carswell, Johnston, Taylor and Close, JJ., concur.