Kossine v. Styliano

WOOD, J.

Plaintiff commenced this action to recover damages for injuries which she suffered when she fell on a stairway in an apartment house owned by defendants Styliano and managed by defendant Williams. The case was tried before the court without a jury. In presenting this appeal from a judgment in favor of defendants plaintiff contends that the findings of the trial court that defendants were free from negligence and that plaintiff’s negligence was the cause of her injuries are without support in the evidence.

Plaintiff was at the time of the accident a minor of the age of fourteen years and had been living in the apartment house of defendants for a period of about two months, during which time she frequently used the stairway provided for the tenants of the building. Plaintiff testified that she fell down the stairway of the apartment house on May 23, 1938, between 7:00 and 7 :30 P. M. Plaintiff was carried upstairs. After about a half hour she returned and, looking at the steps, observed that the carpet was “curled over, pulled away” from the rear part of one of the steps; that one of the tacks used to fasten the carpet was missing so that the carpet had pulled away from the riser. She stated that she

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had caught her foot in the carpet, causing the fall. She was not wearing high heel shoes but was wearing shoes with heels the size of heels on men’s shoes. The carpet was a runner extending to within eight or ten inches from the edge of the stairs. A hand rail had been provided but plaintiff did not make use of it. Gloria Ducker, a friend of plaintiff, sixteen years of age, testified that she noticed the condition of the carpet in question three or four days before plaintiff’s accident and at that time the carpet was pulled away about an inch and one-half from the back of the step and that it was curled a little.

The deposition of defendant Williams was received in evidence. She testified that she examined the carpet in question shortly after the accident and found that only one tack was missing, which she replaced. She found that the carpet was otherwise in good shape; that the carpet had not ‘ ‘ pulled out” because the tack had come up; that “the carpet was not turned in any way at all, the tack was out but it was down as if there had never been anything happen to it”. It was stipulated by the parties that Harry Brenner, who had “picked up” plaintiff when she fell, would if present testify that after helping plaintiff from the stairway, “she.left him and walked toward the grocery store of her parents, and that she said to him that she had fallen downstairs”; that he would testify that “after the girl left he walked up the stairs to his apartment and he used the same stairway and noticed nothing wrong with the carpet”.