Robinson v. Z. & F. Realty Corp. , 1 A.D.2d 160 ( 1956 )

Per Curiam.

Plaintiff, a child of five, fell through a window at the end of the first floor hallway in defendant’s apartment house. The accident happened while several children, including plaintiff, were running about in the hallway playing “ cowboys ”. According to plaintiff’s testimony, given six years later when the case was tried, he ran toward the window and his hip hit the window sill and he fell out. The window sill was approximately twenty-five inches above the floor and had a depth of about twenty inches. The apartment building was an old building and the window had been in the same position and condition for forty-three years prior to the accident without any untoward incident.

Plaintiff’s case was based upon claimed negligence of defendant in maintaining an allegedly dangerous condition where children were known to play. Defendant moved at the end of plaintiff’s case and at the end of the entire case to dismiss the complaint on the ground that a prima facie case had not been made out, and also moved for the direction of a verdict at the end of the entire case. Decision was reserved by the trial court on these motions. The jury disagreed; whereupon defendant renewed its motions for dismissal of the complaint and for a directed verdict. The motions were denied and the defendant appeals.

Although the testimony of plaintiff, a child of eleven, with respect to events occurring six years before when he was a child of five, does not appear to us as very reliable, we will credit it fully for the purpose of this appeal. We think it quite unforeseeable, however, that a playing child would vault through the window with his hip as a pivot. The window condition had existed for forty-three years and for several years prior to the accident children were known to frequent the hallway for play. The fact that no prior mishap occurred strongly indicates that danger was not to be apprehended from the position of the window and the presence of playing children.

As in our view the court would be required to set aside any verdict in favor of the plaintiff for legal insufficiency of evidence, we conclude that the court should have directed a verdict for defendant.

The order appealed from should be reversed and the complaint dismissed, with costs to appellant.

Peck, P. J., Breitel, Cox, Frank and Bergan, JJ., concur.

Order unanimously reversed, with $20 costs and disbursements to the appellant, the complaint dismissed and judgment is directed to be entered in favor of the appellant dismissing the complaint herein, with costs.