Majority
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.
Cases cited
- Dillon v. Rockaway Beach Hospital & Dispensary 284 N. Y. 176 at 179 p. 751
- Ingersoll v. Liberty Bank 278 N. Y. 1 p. 751
- White v. Lehigh Valley Railroad 220 N. Y. 131 at 136 p. 751