Majority
p. 529Etta Bressler, Respondent, v. Rule Realty Co., Inc., Appellant. First Department, March 4, 1927.
Headnote
Negligence — action for injuries suffered when plaintiff slipped and fell on step —• accident occurred while rain was falling with freezing temperature — negligence not shown — plaintiff guilty of contributory negligence.The plaintiff slipped and fell on a step at a time when rain was falling and freezing. It was not negligence for the defendant to fail to remove the ice or to throw a substance on the step to prevent slipping.
The plaintiff was guilty of contributory negligence in failing to save herself against an obviously slippery condition of the step.
Appeal by the defendant, Rule Realty Co., Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of May, 1926, upon the verdict of a jury for $4,000.
Frederick Mellor of counsel [Richard F. Weeks with him on the brief], for the appellant.
Thomas J. Shelly of counsel [Ezra Gottlieb, attorney], for the respondent.
The accident occurred while rain was still falling with freezing temperature. The defendant was not negligent, therefore, in failing to remove the ice or to throw ashes or sawdust thereon. (Kelly v. Manhattan Railway Co., 112 N. Y. 443 .)
Plaintiff was also guilty of contributory negligence in failing to safeguard herself against the obvious slippery condition of the step.
The judgment should be reversed on the law and the facts, with costs, and the complaint dismissed, with costs.
Present — Dowling, P. J., Merrell, Martin, O’Malley and Proskauer, JJ.
Judgment reversed, with costs, and the complaint dismissed, with costs.
Cases cited
- Kelly v. Manhattan Railway Co. 112 N. Y. 443 p. 529