Wiener v. Board of Education

48 A.D.2d 887, 369 N.Y.S.2d 207, 1975 N.Y. App. Div. LEXIS 10144

Opinion

In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered March 29, 1968, in favor of defendant, upon the trial court’s dismissal of the complaint at the close of plaintiff’s case, at a jury trial. Judgment reversed, on the law, and new trial granted, with costs to plaintiff to abide the event. No questions of fact have been raised or considered on this appeal. The infant plaintiff was injured while ascending a flight of steps on a marble stairway in defendant’s school, where she was a student. She testified that she fell, while holding on to the rail, because the steps were worn and had grooves in different parts of them which made them slippery. As she fell, the rail swayed, separating from the wall; plaintiff tumbled down five or six steps. The railing had been loose for a few months before the accident. On the foregoing proof, plaintiff established a prima facie case of negligence, her own freedom from contributory negligence and notice to defendant of the defective condition of the steps and the rail. The case should therefore have been allowed to go to the jury. In addition, we note that the witness Susman should have been permitted to testify that he measured the loose condition of the railing five months after the accident and that it was then in the same condition as it had been in when he viewed it before the accident. However, the photograph showing a cigarette inserted between the wall and the railing plate was properly excluded. Martuscello, Acting P. J., Cohalan, Christ, Munder and Shapiro, JJ., concur.