Majority
p. 61Sylvia Weinstein and Another, Respondents, v. R. H. Macy & Co., Inc., Appellant. Supreme Court, Appellate Term, First Department, May 13, 1937.
Andrews, Baird & Shumate [Samuel E. Swiggett of counsel], for the appellant.
Samuel 0. SchencJs, for the respondents.
Plaintiff, a customer in defendant’s department store, was injured while ascending an ordinary stairway when she was pushed by other customers constituting part of a large crowd. We find no evidence of defendant’s negligence in this case. There was no proof of notice that the stairway in question was continually
p. 62
crowded or any other proof to show the necessity for guards at the point in question. The case of Newberg v. Macy & Co., Inc. (App. Term, 1st Dept., Jan. 1930, N. Y. L. J. Feb. 19, 1930, p. 2540; affd., 228 App. Div. 804 ) is distinguishable in that there was proof of continual crowding at the point of the accident which was the entrance to a mechanical escalator. At an ordinary stairway, at least in the absence of proof of the continual presence of crowds creating a dangerous condition there, it is not negligence for a storekeeper to fail to have guards to regulate customers.
Judgment reversed, with thirty dollars costs, and complaint dismissed on the merits, with costs.
All concur. Present — Levy, Hammer and Callahan, JJ.