Bragg v. Smilowitz

CourtNew York Supreme Court Appellate Division
Writing for the CourtPER CURIAM
Citation16 A.D.2d 181,226 N.Y.S.2d 755
Decision Date13 April 1962
PartiesMelvin A. BRAGG, Plaintiff-Respondent, v. Dora SMILOWITZ and Samuel Smilowitz, Defendants-Appellants.

Page 755

226 N.Y.S.2d 755
16 A.D.2d 181
Melvin A. BRAGG, Plaintiff-Respondent,
v.
Dora SMILOWITZ and Samuel Smilowitz, Defendants-Appellants.
Supreme Court, Appellate Division, Third Department.
April 13, 1962.

Page 756

[16 A.D.2d 182] Bernard M. Rosen, Memphis, Tenn., for defendants-appellants.

Monroe R. Davis, Woodridge, for plaintiff-respondent.

Before [16 A.D.2d 183] BERGAN, P. J., and COON, HERLIHY, REYNOLDS, and TAYLOR, JJ.

PER CURIAM.

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

Page 757

with the path traversed. The lighting conditions which he encountered are revealed by his testimony: 'Q. Was there a light in the yard? A. No, there was no light in the yard. * * * Q. Now, were you able to see where you were walking after you left the kitchen? A. Well, I could see a little out the kitchen door, and after I turned I could see the street out there, but I couldn't see where I was walking. * * * Q. Was there any light coming from the street? A. A little, but I could see the street. Q. Did it light any portion of the...

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6 practice notes
  • O'Connor v. G & R Packing Co.
    • United States
    • New York Supreme Court Appellate Division
    • April 7, 1980
    ...871; Fox v. Mission of Immaculate Virgin, 285 App.Div. 898, 138 N.Y.S.2d 17, affd. 309 N.Y. 812, 130 N.E.2d 613; Bragg v. Smilowitz, 16 A.D.2d 181, 226 N.Y.S.2d 755, affd. 12 N.Y.2d 769, 234 N.Y.S.2d 718, 186 N.E.2d 566; Holgerson v. South 45th St. Garage, 16 A.D.2d 255, 227 N.Y.S.2d 195, a......
  • di Suvero v. Gem Window Cleaning Co.
    • United States
    • United States State Supreme Court (New York)
    • October 14, 1963
    ...hardly appropriate to a case in which the invitation is one to enter an unusual place. An example of this is found in Bragg v. Smilowitz, 16 A.D.2d 181, 226 N.Y.S.2d 755, affd. 12 N.Y.2d 769, 234 N.Y.S.2d 718, 186 N.E.2d 566, where a customer went in the dark to an unlighted open space at t......
  • Washington v. Autumn Props. Ii, LLC., Index No.: 305612/10
    • United States
    • United States State Supreme Court (New York)
    • September 9, 2014
    ...in proceeding without first ascertaining where he or she is going and what obstructions may impede safe progress (see Bragg v. Smilowitz, 16 A.D.2d 181 [3rd Dept. 1962], aff'd., 12 N.Y.2d 769 [1962]). A question of fact arises as to whether a plaintiff is contributorily negligent where, as ......
  • Halstead v. Kennedy Valve Mfg. Co.
    • United States
    • New York Supreme Court Appellate Division
    • May 20, 1971
    ...v. James Stewart & Co., 297 N.Y. 829, 78 N.E.2d 859; Hudson v. Church of Holy Trinity, 250 N.Y. 513, 166 N.E. 306; Bragg v. Smilowitz, 16 A.D.2d 181, 226 N.Y.S.2d 755, affd. 12 N.Y.2d 769, 234 N.Y.S.2d 718, 186 N.E.2d 566; Reinholtz v. Singer, 16 A.D.2d 678; Alexander v. Cavagnaro, 4 A.D.2d......
  • Request a trial to view additional results
6 cases
  • O'Connor v. G & R Packing Co.
    • United States
    • New York Supreme Court Appellate Division
    • April 7, 1980
    ...871; Fox v. Mission of Immaculate Virgin, 285 App.Div. 898, 138 N.Y.S.2d 17, affd. 309 N.Y. 812, 130 N.E.2d 613; Bragg v. Smilowitz, 16 A.D.2d 181, 226 N.Y.S.2d 755, affd. 12 N.Y.2d 769, 234 N.Y.S.2d 718, 186 N.E.2d 566; Holgerson v. South 45th St. Garage, 16 A.D.2d 255, 227 N.Y.S.2d 195, a......
  • di Suvero v. Gem Window Cleaning Co.
    • United States
    • United States State Supreme Court (New York)
    • October 14, 1963
    ...hardly appropriate to a case in which the invitation is one to enter an unusual place. An example of this is found in Bragg v. Smilowitz, 16 A.D.2d 181, 226 N.Y.S.2d 755, affd. 12 N.Y.2d 769, 234 N.Y.S.2d 718, 186 N.E.2d 566, where a customer went in the dark to an unlighted open space at t......
  • Washington v. Autumn Props. Ii, LLC., Index No.: 305612/10
    • United States
    • United States State Supreme Court (New York)
    • September 9, 2014
    ...in proceeding without first ascertaining where he or she is going and what obstructions may impede safe progress (see Bragg v. Smilowitz, 16 A.D.2d 181 [3rd Dept. 1962], aff'd., 12 N.Y.2d 769 [1962]). A question of fact arises as to whether a plaintiff is contributorily negligent where, as ......
  • Halstead v. Kennedy Valve Mfg. Co.
    • United States
    • New York Supreme Court Appellate Division
    • May 20, 1971
    ...v. James Stewart & Co., 297 N.Y. 829, 78 N.E.2d 859; Hudson v. Church of Holy Trinity, 250 N.Y. 513, 166 N.E. 306; Bragg v. Smilowitz, 16 A.D.2d 181, 226 N.Y.S.2d 755, affd. 12 N.Y.2d 769, 234 N.Y.S.2d 718, 186 N.E.2d 566; Reinholtz v. Singer, 16 A.D.2d 678; Alexander v. Cavagnaro, 4 A.D.2d......
  • Request a trial to view additional results

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