Thompson v. Leon — 129 N.Y.S. 765

Majority

p. 765

THOMPSON v. LEON.

(Supreme Court, Appellate Division, First Department.

May 19, 1911.)

Headnote

Evidence (§ 587^[1] )—Weight of Evidence—Physical Facts.

In an action against a tenement house owner for death of a child, who fell over a bannister, evidence held insufficient to show that the accident was caused by her heel catching on a nail on the stairway.

. [Ed. Note.—For other cases, see Evidence, Dec. Dig. § 587.^[1] ]

p. 766

Appeal from Trial1 Term, New York County.

Action by Mary Thompson, administratrix, against Rebecca Leon. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Reversed, and new trial granted.

Argued before INGRAHAM, P. J., and CLARKE, SCOTT, MILLER, and DOWLING, JJ.

Edward P. Mowton, for appellant.

J. Brownson Ker, for respondent.

The plaintiff’s intestate, a child six years old, was killed by a fall over, or from, the bannister of a stairway in the defendant’s tenement house. A witness for the plaintiff testified that about.two hours after the accident she found a piece of leather on a nail in one of the treads of the stairway from which the little child appears to have fallen, and that that piece of leather fitted the heel of the child’s shoe. The plaintiff draws the inference that the child was going down stairs, caught her heel on the nail, and pitched headlong over the bannister. It does not appear how tall the child was, but the bannister was 30 inches high. It would therefore appear to have been physically impossible for the accident to have happened in the manner claimed, and if there was anything about the construction of the stairs that made the accident possible the plaintiff should have shown it.

The judgment and order should be reversed, and a new trial granted; with costs to appellant to abide the event. All concur.