Lattimore's Estate, In re

• Decision Date: 10 December 1970
• Citation: 316 N.Y.S.2d 363,35 A.D.2d 1069
• Parties: In re LATTIMORE'S ESTATE. William H. LATTIMORE, Jr., Individually and as Administrator with Limited Letters of the Estate of Marguerite G. Lattimore, Appellant, v. Dominick FALCONE, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 363

316 N.Y.S.2d 363

35 A.D.2d 1069

In re LATTIMORE'S ESTATE William H. LATTIMORE, Jr., Individually and as Administrator with Limited Letters of the Estate of Marguerite G. Lattimore, Appellant, v. Dominick FALCONE, Respondent.

Supreme Court, Appellate Division, Fourth Department.

Dec. 10, 1970.

Smith, Sovik, Terry, Kendrick, McAuliffe & Schwarzer, Laurence F. Sovik, Syracuse, for appellant.

Hancock, Ryan, Shove & Hust, Robt. A. Small, Syracuse, for respondent.

Before GOLDMAN, P.J., and DEL VECCHIO, WITMER, GABRIELLI, and BASTOW, JJ.

MEMORANDUM:

In reviewing the trial court's dismissal of the complaint at the close of the proof in this wrongful deaht action we are required to give the plaintiff the benefit of every favorable inference which can reasonably be drawn from the facts (Philopt v. Brooklyn Nat. League Baseball Club, 303 N.Y. 116, 119, 100 N.E.2d 164, 165) and to bear in mind that 'in a death case plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence. (Cases cited.) Plaintiffs' evidence is deemed sufficient to make out a prima facie case if it shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred.' (Wragge v. Lizza Asphalt Constr. Co., 17 N.Y.2d 313, 320, 270 N.Y.S.2d 616, 621, 217 N.E.2d 666, 670.) Applying these principles, we cannot say that 'by no rational process' could the jury have found that the absence of a handrail was a proximate cause of decedent's fall on the stairs of the apartment house where she resided. (Swensson v. New York, Albany Despatch Co., 309 N.Y. 497, 505, 131 N.E.2d 902, 906; see also Wessel v. Krop, 30 A.D.2d 764, 291 N.Y.S.2d 986.) Even if the fall was precipitated by a misstep, 'if a handrail had been furnished, the decedent might have held on to it as he descended the stairs, and could have avoided falling. Therefore, the absence of the rail, if required by law, would seem to be a proximate cause of the accident.' (Courtney v. Abro Hardware Corp., 286 App.Div. 261, 262, 142 N.Y.S.2d 790, 792, affd. 1 N.Y.2d 717, 151 N.Y.S.2d 930, 134 N.E.2d 680.) Furthermore, the fact that decedent was apparently transporting rubbish and newspapers to the cellar would not, as a matter of law, have prevented her from grasping the handrail if one had been there, especially in light of the testimony that she carried such things 'under her...