Feldman v. Feldman
| Decision Date | 12 September 1960 |
| Citation | 206 N.Y.S.2d 887,25 Misc.2d 688 |
| Parties | Hannah FELDMAN v. Molly FELDMAN and Isidore Feldman. |
| Court | New York Supreme Court |
Herman & Herman, New York City, for plaintiff (Richard H. Herman, New York City, of counsel).
Frederick Mellor, New York City, for defendant (Reid A. Curtis, Merrick, of counsel).
On consent, only the issue of liability was submitted to the jury, the question of damages being reserved for determination by the court, in the event that the jury resolved the issue of liability in favor of the plaintiff.
The jury unanimously found for the plaintiff and it now becomes necessary to pass upon the motion to dismiss made by the defendants at the end of the whole case and upon their motion to set aside the verdict and for a directed verdict in their favor, upon all of which decision was reserved.
The plaintiff, Hannah Feldman, was and is the daughter of the defendants, Molly Feldman and Isidore Feldman. On October 16, 1954, about 11:30 in the morning, while in the backyard of her parents' joint residence and business premises, she was injured when a thick, forty-foot wooden telegraph-like pole, with spikes on it, used as one end of a clothes line installation, fell upon her. She was at the time engaged in hanging up the family wash, which she did only once in a great while. She was helping out on this occasion because her mother was in the hospital. Plaintiff had completed hanging the wash and had gone back into the kitchen of the house when, upon looking out of the window almost immediately thereafter, she saw that the last sheet she had hung on the line nearest the house was dragging on the ground. She went out to correct this situation and it was while she was attempting to do so that the pole fell upon her. The plaintiff was twenty-seven years of age at the time of the accident, single and residing with her parents in the premises to whom she contributed for the support of the household from her salary.
Proof of the defect in the pole came from plaintiff's brother-in-law. He testified that during the Summer of 1954, some months before the occurrence, he had on one or two occasions noticed an area of wetness about the portion of the pole which was directly above the ground level and that he then noticed that the pole was not in an exactly upright position but that it veered about ten degrees off the vertical. He told his father-in-law, one of the defendants, about both conditions. Pictures of the pole showed deterioration at its base.
When the verdict was received, the defendants moved to set it aside in the following language:
The only other time during the entire trial that the defendants ever questioned the responsibility of the defendants to the plaintiff 'as a resident in the household with her mother and father' was in a request to charge the jury that she, as such resident, 'assumed the risk of ordinary defects in the premises' to which the Court responded.
At the end of the plaintiff's case, the defendants' motion to dismiss was as follows:
'Mr. Curtis: If Your Honor pleases, at this time on behalf of the defendants, I respectfully move for a dismissal of the plaintiff's complaint on the ground that the plaintiff has failed to prove an actionable cause of negligence against the defendants and has failed to prove freedom of contributory negligence on the part of Hannah Feldman in this respect.'
At the end of the whole case, and during his summation, defendants' counsel said: To which the Court replied: 'As long as you remember it now.' Defendants' counsel then said: 'I will renew the motion and also move for a directed verdict.'
It is thus apparent that at no time during the presentation of proof or by their motion to dismiss at the end of the plaintiff's case, or at the end of the whole case, did the defendants ever suggest that the plaintiff's status as a member of the household precluded her right to recover or that her status was that of a social visitor. Indeed as has been pointed out, it was not until after the court had charged the jury that the defendant for the first time asked that plaintiff 'as a resident in the household with her mother and father assumed the risks of ordinary defects in the premises' (emphasis supplied), but even at that time no request was made that court charge the jury that the plaintiff took defendants' property as she found it or that they owed her no duty to make or keep the premises safe or that their only duty to plaintiff was to refrain from active wrongdoing.
The court charged defendants request and it is apparent from the unanimous verdict of the jury in favor of the plaintiff that they found that the particular defect in these premises, to wit, a thick forty-foot pole tilting at a ten degree angle, and wet at its base, of all of which the defendants had actual notice, was not an 'ordinary' defect. In the opinion of the Court, the jury was fully justified in so finding. See Sizse v. Wegmann, 169 App.Div. 112, 115, 154 N.Y.S. 825, 827. The defendants were bound to recognize the perilous position in which the plaintiff was placed while hanging wash on the line caused by a condition of which they had knowledge, and of which the plaintiff was ignorant, and they were, therefore, bound to employ care commensurate with the circumstances and the danger. There was here no ordinary defect but a substantial hazard of which they but not the plaintiff were aware. Failing to disclose and make known that knowledge or to take steps to obviate the danger was a condition which the jury could find to be negligence of more than an ordinary character.
The defendants in their memorandum seek to have the verdict set aside and the complaint dismissed upon their present contention that the plaintiff was a social guest in the premises, and that, therefore, she took the premises as she found them, and that defendants owed her no duty to make the premises safe for her use.
Assuming, arguendo, that there is some merit to that contention, it is now too late or raise that issue.
In Brown v. Du Frey, 1 N.Y.2d 190, 195, 151 N.Y.S.2d 649, 654, the Court of Appeals said:
'It is well settled that the charge of the Trial Judge, insofar as it is not excepted to, becomes the 'law of the case', binding upon the parties, even though it be an erroneous statement of the law of this State. See Buckin v. Long Is. R. R. Co., 286 N.Y. 146, 36 N.E.2d 88; Berner v. Board of Educa., 286 N.Y. 174, 36 N.E.2d 100; Leonard v. Home Owners' Loan Corp., 297 N.Y. 103, 75 N.E.2d 261; McCabe v. Cohen, 294 N.Y....
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