Chernowski v. G. R. Kinney Co.

Judgment unanimously reversed on the law and facts, without costs of this appeal to either party and a new trial granted. Memorandum: The infant plaintiff was injured when she slipped and fell on a floor in defendant’s store. The trial court correctly instructed the jury that " the mere waxing and polishing of a linoleum floor in a retail business place is not negligence” (Curren v. O’Connor, 304 N. Y. 515, 518; Nelson v. Salem Danish Lutheran Church, 270 App. Div. 1030, affd. 296 N. Y. 870). The court further correctly stated that “if a floor is so maintained as to be excessively slippery, either by the nature of the flooring or by the application of some material, that may be negligence.” The state of the proof, however, was well summarized in the next sentence of the charge: " But there is no indication here as to what it was that brought about the claimed condition of the floor.” It follows that the case should not have been submitted to the jury but defendant’s motion to dismiss the complaint made at the close of the proof should have been granted. In the interest of justice, however, we conclude that there should be a new trial to provide an opportunity for the plaintiffs to supply the deficiencies in the proof. (Appeal from judgment of Erie Trial Term in favor of plaintiffs in a negligence action.) Present — Williams, P. J., Bastow, Goldman, Henry and Noonan, JJ.