Kmeth v. Delehanty

Action for damages for personal injuries resulting from fall on mat in shower room. Judgment affirmed, with costs. It was a fair inference from the evidence that the rubber mat was displaced negligently by the employee of defendant (Hart v. Hudson River Bridge Co., 80 N. Y. 622; Swistak v. Erie Railroad Co., 208 App. Div. 553; affd., 239 N. Y. 549; Warner v. New York, Ontario & Western Railway Co., 209 App. Div. 211); and that the plaintiff’s injuries resulted from such negligence in a place where he was an invitee. (Hart v. Grennell, 122 N. Y. 371; McNally v. Oakwood, 210 App. Div. 612; affd., 240 N. Y. 600.) Young, Hagarty and Davis, JJ., concur; Lazansky, P. J., and Kapper, J., dissent on the ground that the position 834 of the mat over the drain, which it is alleged was the cause of the injuries to plaintiff, was not shown to have been due to any act or omission of defendant, nor was it proved that defendant knew or should have known of that position at the time of the accident.