Rankin v. Ittner Realty Co. , 242 N.Y. 339 ( 1926 )

Action to recover for personal injuries alleged to have been sustained by the plaintiff as the result of slipping on steps leading into an apartment where she lived. The defendant offered no evidence except the testimony of Mr. Scarr, who was Director of the United States Weather Bureau in New York city. The judgment of the Appellate Division was not unanimous (two of the justices dissented).

There is absolutely no evidence, as I read this record, of any negligence on the part of the defendant. The plaintiff testified that she left her apartment between two and three o'clock in the afternoon of January 4, 1922; that as she was going down the steps to the sidewalk she slipped and fell; that on the morning of the day the accident occurred it was raining and it looked to her as if the rain, as it fell on the steps, was freezing; that there had been ice upon the steps prior to the time she fell; that in her judgment that ice had been there four or five hours, but she had not been out of her apartment after eight o'clock in the morning until she fell.

There is no proof in the record from anybody as to how long the ice had been on the steps, or that the defendant or its representative had any notice whatever that there was ice on the steps. Mr. Scarr, who had charge of the weather bureau in the city of New York, testified that, according to his records, the lowest temperature on the day the accident occurred was twenty-four degrees above zero and that the highest temperature was forty-three degrees; that at three o'clock in the afternoon, the time when the plaintiff testified the accident occurred, the thermometer registered thirty-seven degrees above zero. He further testified that it began to rain about noon; that there was no rain in the morning when the thermometer was below freezing.

There was nothing, as I read the record, to submit to the jury on the question of defendant's negligence. The complaint ought to have been dismissed, or the jury directed to render a verdict in defendant's favor. The Appellate Division was, therefore, wrong in affirming the judgment in favor of the plaintiff, entered on verdict. The judgments of the Appellate Division and of the trial court should be reversed and the complaint dismissed, with costs in all courts.

HISCOCK, Ch. J., CARDOZO, POUND, CRANE and LEHMAN, JJ., concur; ANDREWS, J., absent.

Judgments reversed, etc.