Bragg v. Smilowitz
| Decision Date | 13 April 1962 |
| Citation | 16 A.D.2d 181,226 N.Y.S.2d 755 |
| Parties | Melvin A. BRAGG, Plaintiff-Respondent, v. Dora SMILOWITZ and Samuel Smilowitz, Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Bernard M. Rosen, Memphis, Tenn., for defendants-appellants.
Monroe R. Davis, Woodridge, for plaintiff-respondent.
Before BERGAN, P. J., and COON, HERLIHY, REYNOLDS, and TAYLOR, JJ.
This is an appeal by the defendants from judgment in favor of plaintiff entered upon a jury verdict in a personal injury negligence action.
The defendants, who are husband and wife, operated a tavern in the hamlet of Woodbourne in Sullivan County. About 1:00 A.M. on October 27, 1957 the plaintiff, accompanied by a Mrs. Houghtaling, came to the defendants' place of business. Shortly after their arrival, he requested that they be served sandwiches. Mr. Smilowitz had gone to an apartment in a building to the rear of the tavern and his wife was in charge of the premises at the time. 'You wait, Smiley will be right back and he will make you the sandwiches' is her version of what she said to plaintiff upon receipt of his order. He testified: 'Mrs. Smilowitz told me to go back and out and around and holler up to the apartment to get Mr. Smilowitz to come down and make the sandwiches.' Each account of the conversation had the corroborative support of witnesses who claimed to have heard it. Impliedly, the jury adopted the plaintiff's version of the episode.
The plaintiff did not await the return of Mr. Smilowitz. He departed from the barroom, walked through the kitchen, out its rear door and across the open space in the rear of the building. He then turned to his left into an alleyway and had proceeded a short distance when he fell down the stairs of an outside cellar entrance sustaining the injuries for which he has been awarded damages. The plaintiff was unfamiliar with the path traversed. The lighting conditions which he encountered are revealed by his testimony: Mrs. Houghtaling who with Mr. Smilowitz went immediately to the scene of the fall testified that the scope of her visibility was limited to the area disclosed by the illumination of a flashlight which he carried.
The proof established the negligence with which the defendants were...
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