Kern v. Great Atl. & Pacific Tea Co.

• Decision Date: 12 January 1926
• Citation: 241 N.Y. 600,150 N.E. 572
• Court: New York Court of Appeals Court of Appeals
• Parties: KERN v. GREAT ATLANTIC & PACIFIC TEA CO.

241 N.Y. 600

150 N.E. 572

KERN

v.GREAT ATLANTIC & PACIFIC TEA CO.

Court of Appeals of New York.

Jan. 12, 1926.

Action by Kathrian L. Kern against the Great Atlantic & Pacific Tea Company. From a judgmnet of the Appellate Division (204 N. Y. S. 402, 209 App. Div. 133) reversing on the law and facts a judgment entered on a verdict and dismissing the complaint, plaintiff appeals.

Judgment modified so as to grant a new trial, and as so modified affirmed.

Appeal from Supreme Court, Appellate Division, First department.

William Dike Reed, of New York City, for appellant.

Joseph F. Murray and Charles R. O'Connor, both of New York City, for respondent.

PER CURIAM.

Between 3 and 4 o'clock on the afternoon of the 17th of May, 1919, the plaintiff went to a store kept by the defendant, located on Westchester avenue in The Bronx, New York City, for the purpose of making certain purchases. After making the purchases, she started to leave the store, and in doing so she slipped or stumbled over the doorsill of the door opening to the street. She testified:

‘As I was going out, I tripped over the saddle, or whatever you call it, and I fell down the incline of the steps.

‘Q. Where was the saddle at the door? A. Right at the edge.

‘Q. The edge of what? A. Of the door. * * *

‘Q. The edge of what? A. The floor.

‘Q. When you stumbled there, you say you went right down the steps. How did you go down the steps? A. I fell forward. * * *

‘Q. And when you got to the entrance of the store, the front of your right foot caught in the saddle of the door and you fell forward out into the street? A. Yes, sir; struck the saddle of the door.

‘Q. And the front of your right foot struck the saddle of the door and you went forward? A. Yes.’

Immediately outside of the door leading to the street were two steps leading to the sidewalk. Underneath this door was a sill or saddle, as it is termed in the record, five-eighths of an inch thick and in other respects of the usual or ordinary form.

The trial court submitted to the jury, as a question of fact for it to determine, whether by reason of the construction of the sill, the way it was placed with reference to the floor of the store, and the step immediately beneath it, defendant was responsible for the plaintiff's injuries. The jury found a verdict in favor of the plaintiff, but, on appeal, the judgment was reversed and the complaint dismissed.

We are of the opinion that the trial court was right in holding that a question...