Summary
In Kampf (supra) the court, in reversing the decision below and allowing plaintiff recovery for a lost coat, held: "There was an express invitation to plaintiff, held out by defendants, to place her coat in the dressing room and thus yield her personal vigilance during her working hours.
Summary of this case from Grana v. Security Ins. GroupOpinion
March 20, 1944.
Appeal from Municipal Court.
Order of the Appellate Term reversed on the law and the facts, the judgment entered thereon vacated, and the judgment of the Municipal Court in favor of plaintiff affirmed, with costs in all courts. We find that the infant plaintiff did not assume the risk as a matter of law. There was an express invitation to plaintiff, held out by defendants, to place her coat in the dressing room and thus yield her personal vigilance during her working hours. There was a bailment for the mutual benefit of plaintiff and defendants. (Labor Law, § 379, as implemented by rule 159 of the Rules of the New York State Industrial Board; 4 Williston on Contracts [Rev. ed.] p. 2904.) There was a consequent duty upon defendants to deliver the coat on demand or to account for its absence. Their failure to do either is prima facie evidence of negligence. ( Claflin et al. v. Meyer, 75 N.Y. 260, 262.) In any event, there was a question of fact as to whether the defendants exercised the degree of care required, and the finding of the trial court is not against the weight of the evidence. ( Bunnell v. Stern et al., 122 N.Y. 539.) Close, P.J., Hagarty, Carswell, Johnston and Aldrich, JJ., concur.