Pattison v. Livingston Amusement Co.

Appellate Division of the Supreme Court of New York

Pattison v. Livingston Amusement Co.

156 A.D. 368, 141 N.Y.S. 588, 1913 N.Y. App. Div. LEXIS 5836

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 30, 1913

StatusPublished

Cited by12 cases

This text of 156 A.D. 368 (Pattison v. Livingston Amusement Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pattison v. Livingston Amusement Co., 156 A.D. 368, 141 N.Y.S. 588, 1913 N.Y. App. Div. LEXIS 5836 (N.Y. Ct. App. 1913).

Pincite

Opinion

Per Curiam:

Plaintiff has failed to show herself to be free from negligence contributing to her injury. She testified' that when she entered upon the platform at the rear of the balcony in defendant’s theatre, it was “dark,” “very.dark,”so dark that she could not see any steps. " The seats "which she "had purchased were in the fifth row from the front. There was a sharp1 conflict of evidence, upon the question of the absence of light, but as she has persuaded the jury to accept her testimony as true, she in turn must accept the consequences thereof. She had been in the theatre before, she knew that there were steps leading down [369]*369from the platform to the said fifth row of seats. Notwithstanding this knowledge, and notwithstanding this darkness, to use her own words, she groped her way along. She neither asked for assistance to find her way, nor waited, as there was abundant time for her to do, until more lights had been turned on. Missing her .footing at the top of the steps, she fell and was injured. Within the authorities she was guilty of contributory negligence as matter of law, and the motion for a nonsuit should have been granted. (Rohrbacher v. Gillig, 203 N. Y. 413; Brugher v. Buchtenkirch, 167 id. 153; Piper v. New York Central & H. R. R. R. Co., 156 id. 224; Hilsenbeck v. Guhring, 131 id. 674.) There is no contention that any competent evidence offered on the part of plaintiff was not received, and since the evidence was insufficient to require the submission of the case to the jury, and this question was duly presented by a motion for the dismissal of the complaint, the judgment and order appealed' from should be reversed, and final judgment granted to defendant dismissing the complaint. (Code Civ. Proc. § 1317; Bonnette v. Molloy, 153 App. Div. 73.)

Jenks, P. J., Burr, Rich and Stapleton, JJ., concurred; Hirschberg, J., dissented.

Judgment and order reversed, and final judgment granted to defendant dismissing the complaint, with costs.

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Per Curiam:

Plaintiff has failed to show herself to be free from negligence contributing to her injury. She testified' that when she entered upon the platform at the rear of the balcony in defendant’s theatre, it was “dark,” “very.dark,”so dark that she could not see any steps. " The seats "which she "had purchased were in the fifth row from the front. There was a sharp1 conflict of evidence, upon the question of the absence of light, but as she has persuaded the jury to accept her testimony as true, she in turn must accept the consequences thereof. She had been in the theatre before, she knew that there were steps leading down [369]*369from the platform to the said fifth row of seats. Notwithstanding this knowledge, and notwithstanding this darkness, to use her own words, she groped her way along. She neither asked for assistance to find her way, nor waited, as there was abundant time for her to do, until more lights had been turned on. Missing her .footing at the top of the steps, she fell and was injured. Within the authorities she was guilty of contributory negligence as matter of law, and the motion for a nonsuit should have been granted. (Rohrbacher v. Gillig, 203 N. Y. 413; Brugher v. Buchtenkirch, 167 id. 153; Piper v. New York Central & H. R. R. R. Co., 156 id. 224; Hilsenbeck v. Guhring, 131 id. 674.) There is no contention that any competent evidence offered on the part of plaintiff was not received, and since the evidence was insufficient to require the submission of the case to the jury, and this question was duly presented by a motion for the dismissal of the complaint, the judgment and order appealed' from should be reversed, and final judgment granted to defendant dismissing the complaint. (Code Civ. Proc. § 1317; Bonnette v. Molloy, 153 App. Div. 73.)

Jenks, P. J., Burr, Rich and Stapleton, JJ., concurred; Hirschberg, J., dissented.

Judgment and order reversed, and final judgment granted to defendant dismissing the complaint, with costs.

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Bluebook (online)

156 A.D. 368, 141 N.Y.S. 588, 1913 N.Y. App. Div. LEXIS 5836, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pattison-v-livingston-amusement-co-nyappdiv-1913.

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