Colombo v. Axelrad

NOURSE, P. J.

On the afternoon of April 25, 1939, at about 2 o’clock plaintiff, Emelia Colombo, and her daughter-in-law were taken by Mr. Moise to defendant’s furniture store for the purpose of selecting and purchasing linoleum for plaintiffs’ son; this plaintiff testified that she intended to buy the linoleum as a gift for the junior Colombos. Moise was an independent salesman who worked for various furniture stores on a commission and who had an arrangement with defendant to bring customers to the latter’s store, to display its merchandise and to make sales on a commission basis. The premises were illuminated by six ceiling lights suspended to a point nine feet six inches above the main floor level. At the rear or east end of the store was a stairwell running north and south and open on the south end giving access to the basement. The stairs were protected on the west side by a railing two feet nine inches in height, and on this same side were arranged rolls of linoleum one foot in diameter and six feet high and placed in two rows three feet

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apart parallel with the stairway. The north end of the stairwell was also protected by a railing which was obscured by a rug display. On the east side of the stairwell was a ledge between the stairs and the rear wall of the store upon which bookcases were displayed. At the time of the accident the light over the stairway and the lights in the basement were not lit, and there is a conflict of testimony as to whether the southeast light of the store which was fifteen feet four inches west of the center of the stairwell was lit. Plaintiff, accompanied by Moise, approached the linoleum display from the front of the store and inspected the nearest roll of linoleum from the westerly side. She walked sideways in a southerly direction and the condition of the lighting was such that she had to look at the merchandise at a distance of from twelve to fifteen inches in order to see the patterns. Upon reaching the end of the roAv she Avalked around it and approached the easterly roAv of linoleum. As she started to Avalk around the southerly part of the second roAv to get to the east side she took a step north and was precipitated to the basement causing her injuries. The court entered a judgment upon the verdict awarding plaintiffs damages and defendant appeals.

Appellant states two grounds of appeal—whether Emelia Colombo was guilty of contributory negligence as a matter of law, and Avhether she Avas not a mere licensee. Both questions must be answered in the negative.