Mann v. Shipley

SHINN, Acting P. J. Plaintiff brought this action for the alleged wrongful death of his two-and-one-half-year-old daughter, who fell from the roof of defendant’s apartment house through a screened ventilating shaft. Defendant’s answer denied negligence and pleaded contributory negligence [454]of the child’s mother, plaintiff’s wife, in allowing the child to play on the roof. The action was tried to a jury and a verdict of $6,000 was returned in favor of plaintiff. On defendant’s motion a new trial was ordered on the ground of insufficiency of evidence and that the verdict was contrary to law, and plaintiff appeals from that order.

The apartment building was owned by defendant, and a Mrs. Kostelnik was one of the tenants.' Mrs. Mann was employed in the check room, and Mrs. Kostelnik as cashier, at a night club, and they were friends of long standing. Mrs. Mann visited Mrs. Kostelnik at the apartment house about three times a week. Children were not allowed to live there, and Mrs. Kostelnik’s twelve-year-old son was only allowed to visit her after she obtained permission for him to do so. The written permission that was required stated that children allowed in the apartments were not permitted to loiter in the hallways or elsewhere about the premises, other than in the apartment where they were visiting. Mrs. Mann was familiar with this practice, having been so informed by Mrs. Kostelnik.

On the day of the accident, after the arrival of- Mrs. Mann and her daughter, Mrs. Kostelnik started up to the laundry room near the roof to do her laundry, and Mrs. Mann changed her clothing and removed most of the clothing of the child. She testified that Mrs. Kostelnik invited her to go to the roof to sun bathe and that she went there with her daughter; that the daughter stepped outside and her mother brought her back and put on her shoes; she had only looked out upon the roof through the doorway prior to the time the child fell into the air shaft; the child was playing up and down the steps leading to the roof and out on a boardwalk on top of the roof; Mrs. Kostelnik was washing clothes in the laundry room, which was close to the doorway leading to the roof; Mrs. Mann was standing in the doorway talking to Mrs. Kostelnik and watching her child; at the outer edges of the roof there was nothing other than a coping some 6 inches high; the air shaft was but a few feet away from the doorway, and the boardwalk on which the child was playing was but a few inches from the air shaft; there was a coping around the shaft, some 3 inches high, and also a wooden railing with a single rail approximately 30 inches above the coping; the child reached for the railing, her mother saw her and reached for her too late to catch her as she fell through the shaft. Mrs. Mann testified that she had never