Opinion
May 1, 1939.
Action by Elizabeth Roy to recover damages for personal injuries sustained when her foot caught in a hook attached to a door in defendant's store; and by her husband, Arthur Roy, for loss of services and expenses incurred by reason of his wife's injuries. Order of Appellate Term reversing a judgment of the City Court of the City of New York, County of Queens, and dismissing the complaint, reversed on the law, judgment of the City Court vacated, and a new trial ordered, with costs in this court and in the Appellate Term to abide the event. The hook which caught the strap of the plaintiff-wife's shoe on her left foot as she was on her way out of the defendant's store is approximately five and one-half inches in length. It dangled downward about three and one-half inches from the left side of the door, as one faces it from the store. The door was a heavy one. Although the hook easily could have been secured by affixing it to an eye attached to the door, that was not done. It was for the jury to say whether or not the condition constituted a nuisance, or in the alternative, whether or not defendant was negligent in failing to anticipate an accident of the kind which did occur. ( Kern v. Great Atlantic Pacific Tea Company, 241 N.Y. 600; Ford v. Wanamaker, 165 App. Div. 284.) Plaintiffs were entitled to go to the jury on both theories. ( Venable v. Consolidated Dry Goods Co., 225 App. Div. 202; affd., 251 N.Y. 585.) Defendant, however, has the right to show that no similar accident had occurred during the time that this condition prevailed. Hagarty, Johnston and Taylor, JJ., concur; Lazansky, P.J., and Adel, J., dissent and vote to affirm the order.