Wells v. Thaber Realty Co.

268 A.D. 751, 48 N.Y.S.2d 489

Opinion

Per Curiam.

The action is to recover for the wrongful death of plaintiff’s intestate. Relying wholly upon circumstantial evidence, plaintiff attempted to establish that the fall of the deceased down a staircase in the building where he resided was caused by a defective step. The deceased sustained a fracture of the skull and died the next day. At the hospital to which he had been removed on the night of the accident, it was found that he was “ alcoholic.” A chemical analysis of the brain made at the autopsy showed “ Ethyl alcohol present in fair amount 2 plus.”

Though circumstantial evidence may be sufficient to support an inference of causation or of negligence, or both (Dillon v. Rockaway Beach Hospital, 284 N. Y. 176, 179; Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1; White v. Lehigh Valley R. R. Co., 220 N. Y. 131, 136), upon the record here the jury’s finding that there was a causal connection between the alleged defective condition of the stairs and the deceased’s fall is contrary to the weight of the credible evidence. The judgment should, accordingly, be reversed and a new trial ordered, with costs to appellant to abide the event.

Martin, P. J., Untermyer and Cohn, JJ., concur; Townley and Dore, JJ., dissent and vote to affirm.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.