Chilli v. Divita — 245 N.Y. 615

Majority

p. 615

Concetta Chilli et al., Appellants, v. Ignazia Divita, Respondent.

(Argued June 3, 1927;

decided June 21, 1927.)

Headnote

Negligence — landlord and tenant —• injury to tenant from fall on stairway — contributory negligence question for jury.

Chilli v. Divita, 218 App. Div. 833 , reversed.

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 10, 1927, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action to recover for personal injuries alleged to have been sustained by plaintiff Concetta Chilli and for loss of services and expense alleged to have been sustained by plaintiff Placido Chilli through the negligence of defendant, their landlord, in failing to keep the stairs in a tenement house in repair. The complaint alleged that plaintiff Concetti Chilli in descending the stairs caught her foot in a defect in the stairs and fell receiving the injuries complained of. The Appellate Division reversed on the ground “ that the evidence fails to show that the plaintiff Concetta Chilli was in the exercise of due care in descending the stairway.”

Leonard F. Fish and Samuel Kornbluth for appellants.

M, D. Meeker, John P. Carson, Reginald V. Spell and William A. Earl for respondent.

Order of Appellate Division reversed and judgment of Trial Term affirmed, with costs in this court and in the

p. 616

Appellate Division, on the ground that the question of contributory negligence was one of fact for the jury.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.