Phillips v. New York City Transit Authority

7 A.D.2d 996, 184 N.Y.S.2d 73, 1959 N.Y. App. Div. LEXIS 9812

Opinion

In an action by Martha Phillips to recover damages for personal injuries and by her husband for medical expenses and loss of services, the appeal is from a judgment entered on a dismissal of the complaint at the close of plaintiffs’ ease. The complaint alleged that respondent Brown carelessly descended a stairway maintained in a defective condition by respondent Transit Authority and slipped, striking the appellant wife who was in front of him on the stairway and causing her to fall to the bottom thereof. Judgment affirmed, without costs. No opinion. Beldock, Acting P. J., Murphy, Ughetta and Hallinan, JJ., concur; Kleinfeld, J., concurs in the affirmance of the judgment insofar as it is in favor of respondent Transit Authority against appellants, but dissents from the affirmance of said judgment insofar as it is in favor of respondent Brown against appellants, and votes to reverse that part of the judgment and to grant a new trial, with the following memorandum: In my opinion, it was improper to dismiss the complaint as against respondent Brown. The weight and probative effect of his admission that he “ caused the accident ” should foe determined by the jury, not by the court (Gangi v. Fradus, 227 N. Y. 452). Moreover, the circumstances of this accident were such that the rationale of the res ipsa loquitur doctrine should be applied with respect to said respondent (cf. Plumb v. Richmond Light & R. R. Co., 233 N. Y. 285; Bressler v. New York R. T. Corp., 270 N. Y. 409).