Morton v. Manhattan Lunch Co.

NOURSE, P. J.

The defendant has appealed from a judgment upon the verdict in favor of plaintiffs for $1,750.

The defendant was the occupant of premises upon which it operated a restaurant. Plaintiff wife entered the place for lunch, and, after eating, went up a stairway leading to a mezzanine floor to reach the rest room. This stairway was three feet, six inches wide, equipped with a handrail on each side. The steps were covered with linoleum held in place by brass strips fastened by screws or brads to form a nose for each tread. Some of these brass strips had become worn from use causing them in places to be elevated above the linoleum about three-sixteenths of an inch. As plaintiff wife was returning down the stairs her foot caught in some obstruction at about the second or third step from the top, and the resulting fall brought about her injuries.

The defendant and appellant contends that there was no evidence showing any negligence on its part which was a proximate cause of respondent wife’s injuries. The direct evidence of negligence is extremely meager, and the verdict must, depend to a large extent upon the inferences coming from this evidence. Proof was made of the dangerous condition of the stairway; that this was known to the owner

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through knowledge of an employee; was not known to the respondent; and was not an obvious danger. There was no evidence of contributory negligence on the part of respondent wife. The question is left whether the inferences coming from these facts were sufficient to support the judgment.

The liability of the owner or occupant of premises to an invitee for injuries occasioned by the unsafe condition of the premises is fully discussed in 20 Ruling Case Law at page 57. It is there said that: “The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.” Hence, a recovery cannot be had when the owner or occupant has no knowledge of the danger, where the plaintiff has such knowledge, where the danger is obvious, or where the plaintiff is guilty of contributory negligence.