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Gerlan v. Cooke

51 N.Y.S. 361 Court N.Y. App. Term Decision date 1898-05-03 English

Delivered by BEEKMAM, P. J.

Contents

Majority

p. 361
GERLAN v. COOKE.
(23 Misc. Rep. 460.)
(Supreme Court, Appellate Term.
May 3, 1898.)

Headnote

Negligence—Injury to Licensee.
The plaintiff, while attending a sale at defendant’s auction rooms, was struck dnd injured by a tablé falling from above and behind her, so that she was not in a position to observe the cause of the accident. The only testimony on this point was given by two witnesses on behalf of defendant, who both testified that the fall of the table was occasioned by the act of a stranger who was examining the table. Held that, as there was no evidence of defendant’s negligence, the complaint should have been dismissed.
Appeal from Ninth district court.
Action by Bridget Gerlan against Sarah E. Cooke. Judgment for plaintiff, and defendant appeals.
Reversed.
p. 362
Argued before BEEKMAN, P. J., and GILDERSLEEVE and GIEGERIGH, J.J.
Benjamin & Loeser, for appellant.
O. J. Hochstadter, for respondent.

The plaintiff has recovered judgment against the defendant for damages flowing from injuries which she has alleged, and which the court below has found, to have been caused by the negligence of the defendant. The facts of the case are practically undisputed. The plaintiff testified that she went into the auction room of the defendant, who seems to have been engaged in the business of selling furniture and other articles at public auction, for the purpose of bidding at a sale which was then going on in that place. After she had entered the store, she observed, among other property apparently to be sold, three tables which were placed one upon the other, the table at the top being a small one, weighing about 10 pounds. She states that she was standing with her back to these tables when she heard a rattle behind her, and was immediately struck by the falling of the upper table, and suffered the injuries complained of. The witnesses on behalf of the defendant testified that the fall of the table was ■occasioned by the act of a stranger who was attending the sale, and who was seen by them handling the table, and that it fell while it was in her hands. This testimony was given, not only by an ■employé of the defendant, but also by another person, a bystander, who was entirely disinterested. The evidence thus given was not contradicted by the plaintiff. She herself was not in a position to observe the cause of the occurrence, nor did she produce any witness for the purpose of giving any other version of it. Upon this state of the facts, it is obvious that there was no evidence of negligence on the part of the defendant, and the justice below should have dismissed the complaint. Steiker v. Plath, 19 App. Div. 376 , 46 N. Y. Supp. 585 .

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

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