Rom v. Seufert

2 A.D.2d 757, 153 N.Y.S.2d 454, 1956 N.Y. App. Div. LEXIS 4808

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 2, 1956
• Status: Published

Opinion

In an action by appellant Julia Rom to recover damages for personal injuries, and by her husband for medical expenses and loss of services, tried before the court and a jury, the complaint was dismissed as against respondents at the close of the entire case. Judgment unanimously affirmed, with costs. The theory of appellants’ action is that the wife’s injuries were the result of a fall caused by the opening from below, without warning, of cellar doors over which she was passing; and that the doors were opened so that cases of beverages being delivered by respondent Hoffman to respondent Flamme, who operated a store on the premises, could be placed in the cellar by Hoffman’s employees. There was a complete absence of proof as to who opened the cellar doors, and there was uncontradicted evidence that the cellar was used by, and was accessible to, persons other than respondent Flamme. Considering the facts adduced at the trial in the aspect most favorable to appellants and according them the benefit of every favorable inference which can reasonably be drawn from those facts (Philpot v. Brooklyn Nat. League Baseball Club, 303 N. Y. 116, 119), we are of the opinion that appellants failed to prove any facts from which the inference of respondents’ negligence may reasonably be drawn. (Cf. Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90, 93-94; Lamb v. Union Ry. Co., 195 N. Y. 260, 266; Digelormo v. Weil, 260 N. Y. 192, 199-200; Ditmars v. Renz, 269 N. Y. 191, 193, 197.) Present — Nolan, P. J., Wenzel, Beldoek, Ughetta and Kleinfeld, JJ.