Philips v. Wendel Foundation

263 A.D. 849, 31 N.Y.S.2d 673, 1941 N.Y. App. Div. LEXIS 5252

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 1941
• Status: Published

Opinion

Action by plaintiff Beatrice Philips to recover damages for injuries sustained as the result of slipping on the edge of a stone step which was chipped or which crumbled when she placed the ball of her foot thereon, and by her husband for loss of services and for expenses. Judgment in favor of plaintiffs reversed on the facts and a new trial granted, with costs to abide the event, on the ground that the verdict of the jury is against the weight of the evidence. Lazansky, P. J., Carswell and Johnston, JJ., concur; Hagarty and Adel, JJ., dissent and vote to reverse the judgment on the law and to dismiss the complaint, with the following memorandum: The photographs introduced in evidence by the parties show that the chipping of these steps in general, and in particular at the place at which the plaintiff claimed to have slipped, was in the nature of ordinary wear and of such a character as not to impose the obligation upon the defendant of foreseeing injury occasioned thereby. (Laun v. Karl, 278 N. Y. 506; Tryon v. Chalmers, 205 App. Div. 816; Charanis v. Macy & Co., Inc., 257 id. 980; Campbell v. Resnick, 253 id. 894; Balastiere v. Lovecchio, 260 id. 1030.)