Martorelli v. Prisco

Respondent, an aunt of appellant’s wife, visited appellant’s one-family house several times a week over a period of years. On February 8, 1951, she was asked by appellant’s wife to come to the house to care for appellant’s child. While there respondent fell down a flight of five steps, the top one of which is claimed to have been defective, seriously injuring her arm. Respondent testified that she knew of the condition of the steps, had given notice thereof to appellant’s wife, and had frequently used the steps thereafter. At the time of the accident, respondent intended to descend two of the steps in order to place a milk bottle on a shelf, the milk in the bottle having been consumed by respondent. Judgment, entered on the verdict of a jury in favor of respondent, reversed on the law, without costs, and complaint dismissed, without costs. The findings of fact implied by the verdict are affirmed. No actionable negligence on the part of appellant was established. There is nothing to show that respondent’s characterization of “ sagging ” and “ loosening up ” was anything more than a reference to a slight give of resilient wood under 220 pounds of weight. Even if the fact that respondent knew of the condition of the steps and realized the risk involved in their use be disregarded (Restatement, Torts, § 340; Lobsenz v. Bubenstein, 258 App. Div. 164, affd. 283 N. T. 600), the verdict finds no support in the evidence. Adel, Acting P. J., Schmidt and Murphy, JJ., concur; MacCrate and Beldoek, JJ., dissent and vote to affirm the judgment on the ground that the proof presented questions of fact for determination by the jury as to appellant’s negligence and respondent’s freedom from contributory negligence.