Summary
In Silverberg v. Schweig, 288 N.Y. 217, 42 N.E.2d 493, the Appellate Division, 260 App. Div. 658, 23 N.Y.S.2d 599, citing Vega v. Lange, supra, 248 App. Div. 521, 290 N.Y.S. 736, had reversed a jury verdict for a plaintiff injured on defendant's fire escape while connecting a radio aerial.
Summary of this case from Avlon v. Greencha Holding Corp.Opinion
Submitted April 22, 1942
Decided June 4, 1942
Appeal from the Supreme Court, Appellate Division, Second Department, JOHNSON, J.
Arthur Hutter and Joseph A. Jacobson for appellants. Francis Van Orman and A.T. Antinozzi for respondents.
The infant plaintiff sustained personal injuries allegedly due to a defective drop ladder which formed a part of a fire escape attached to a multiple dwelling owned by the defendant Schweig and managed by the defendant Herman.
Upon the present record we think there was no evidence that the defendants, or either of them, had such exclusive possession, control and oversight of the agency which is alleged to have caused the infant plaintiff's injury, as to make applicable the rule of res ipsa loquitur. ( Foltis, Inc., v. City of New York, 287 N.Y. 108, 114-117; Bressler v. New York Rapid Transit Corp., 270 N.Y. 409, 413; Galbraith v. Busch, 267 N.Y. 230, 235; Slater v. Barnes, 241 N.Y. 284, 287.) There was evidence, however, sufficient to present a question of fact whether, when the infant plaintiff used the drop ladder as a means to reach the fire escape, he did so as an invitee to whom the defendants owed the duty to maintain the ladder in a reasonably safe condition for such use. ( Bowers v. City Bank Farmers Trust Co., 282 N.Y. 442, 445.)
The judgments should be reversed and a new trial granted, with costs to abide the event.
LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur.
Judgments reversed, etc.