Joel v. Electrical Research Products, 108.

• Decision Date: 07 February 1938
• Docket Number: No. 108.,108.
• Citation: 94 F.2d 588
• Parties: JOEL v. ELECTRICAL RESEARCH PRODUCTS, Inc.
• Court: U.S. Court of Appeals — Second Circuit

94 F.2d 588 (1938)

JOEL v. ELECTRICAL RESEARCH PRODUCTS, Inc.

No. 108.

Circuit Court of Appeals, Second Circuit.

February 7, 1938.

Homer H. Breland, of New York City, for defendant-appellant.

Mortimer H. Tischler, of New York City (Gabriel Rubino, of New York City, of counsel), for plaintiff-appellee.

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

This suit, removed from the Supreme Court of New York, Bronx County, on the ground of diversity of citizenship, was brought at law and tried to a jury to recover for personal injuries sustained by the plaintiff when she fell on a driveway in front of premises on Oliver place, in the Bronx, in New York City, which were leased and occupied entirely by the defendant.

Though the cause and place of the plaintiff's fall were both the subject of conflicting testimony, those issues of fact were submitted clearly to the jury in an excellent charge and the verdict, supported as it is by adequate evidence, must now be taken to have established both to have been in accordance with the evidence in behalf of the plaintiff. We therefore treat as correct the following statement of what occurred:

On January 6, 1936, the plaintiff, an elderly lady, approached the defendant's property, walking along the public sidewalk of the street, known as Oliver place, in front of an apartment house adjoining the defendant's premises about 4 o'clock in the afternoon. It was sleeting and freezing and, when she came to the dividing line between the sidewalk in front of the apartment house and the defendant's property, she stepped upon a driveway which sloped upwardly from the curb line of the street to double doors leading into the defendant's building which was used to store film. This driveway was slippery and somewhat covered with snow. It had been built of concrete some 26 years previously by a predecessor in occupancy of the defendant under a permit granted by the city. For some years the surface of the concrete, broken near the inside of the double doors nearest the apartment house, had been allowed to remain in a broken condition. The break extended from there diagonally toward the curb to one slab apparently not broken, and then the break continued in the same general direction to the curb, getting somewhat wider as it went. At a point about 2 feet 9 inches in from the curb the break crossed the dividing line and from there to the curb was in front of the apartment house lot. That part of the broken area within the defendant's driveway was roughly from 2 to 11 inches wide and about an inch deep, making jagged edges along the unbroken part, its greatest width in the driveway being that part nearest the curb. The existence of this break was well known to the defendant, whose evidence was to the effect that it had been there ever since it had leased the premises about three years previously and the defendant from time to time had filled the broken part with cinders, but they had partially come out at the time of the accident.

As the plaintiff stepped onto the driveway, the heel of the shoe on her right foot went into the defective part of the concrete and caught. This caused her to lose her balance and fall. She received serious and permanent injuries.

It was undisputed that the defendant used the entrance to its building at this driveway for the receipt of the film to be stored. The trucks bringing the film were not allowed to drive into the building on account of the fire...