Palenius v. M. H. Fishman Co.

Action to recover damages for personal injuries and for loss of services. From a judgment dismissing the complaint at the conclusion of all the proofs, and as well from a formal order directing such dismissal, plaintiffs appeal. Judgment reversed on the law and a new trial granted, with costs to appellants to abide the event. In our opinion, the proofs and the inferences flowing legitimately therefrom, viewed in the light most favorable to plaintiffs, required the submission to the jury of the issues of negligence and contributory negligence. • The plaintiff wife, an invitee of defendant, fell upon the floor of a main aisle in defendant’s department store, sustaining personal injuries. There was evidence from which the jury might have inferred (1) that there was an unusual application or maintenance of oil on that floor; (2) that such condition had existed for a sufficient length of time before the accident to charge the defendant with notice thereof; (3) that such condition was the proximate cause of the injured plaintiff’s fall and injury, and (4) that such plaintiff was guilty of no contributory negligence. The dismissal was error. (Huth v. Woolworth & Co., 225 App. Div. 656, affd. 250 N. Y. 577; Laundrie v. Grant Co., 241 App. Div. 904; Pratt v. American Stores Co., 262 App. Div. 931; Landrum v. Victory Chain, Inc., 262 App. Div. 424; Rothemeier v. Holzheimer, 263 App. Div. 781.) The case upon which the learned Trial Justice relied (Abbott v. Richmond County Country Club, 211 App. Div. 231, affd. 240 N. Y. 693), when considered 770 in the light of its peculiar facts, is not in conflict with our ruling here. Appeal from order dismissed, without costs. The order is representative of a ruling on the trial and is not appealable. Hagarty, Acting P. J., Johnston, Adel, Taylor and Lewis, JJ., concur.