Holder v. City of Yonkers , 281 A.D. 975 ( 1953 )

In an action by plaintiff wife to recover damages for personal injuries sustained by her in a fall down a flight of steps in a multiple dwelling owned and controlled by defendant, in which she and her husband were tenants, and by plaintiff husband for expenses and loss of services and society, defendant appeals from a judgment in favor of plaintiffs, entered upon a jury verdict Judgment reversed on the law and the facts, with costs, and complaint dismissed, with costs. If we were not dismissing the complaint, we would nevertheless reverse the judgment and grant a new trial on the ground that the verdict was against the weight of the evidence. The fall was caused by plaintiff wife slipping on a step which by reason of long usage had become worn and chipped for an inch and one half back from the edge, on the surface, or that part which was the nosing. From this evidence and the photographs of the condition, we are of opinion that the defect was too slight to charge a prudent person with reasonable anticipation of danger. (See Tryon v. Chalmers, 205 App. Div. 816; also, Kline v. Abraham, 178 N. Y. 377; Mitcheltree v. Stair, 135 App. Div. 210.) At the trial, liability was not sought to be imposed on the basis of any statutory requirement with respect to handrails. In the absence of statutory requirement, it may not be said that handrails which are twenty-four and one-half inches above the stair tread at the nosing can constitute negligence merely because installation of such rails is generally about seven inches higher. Adel, Acting P. J., Wenzel and Beldoek, JJ., concur; Mac Crate and Schmidt, JJ., concur for reversal but dissent as to the dismissal of the complaint and vote to grant a new trial, on the ground that the verdict was against the weight of the evidence.