Opinion
January 28, 1957
In an action to recover damages for personal injuries, the appeal, by permission of this court, is from an order of the Appellate Term affirming a judgment of the Municipal Court of the City of New York, Borough of Brooklyn, Second District, entered on a jury verdict in favor of respondent, and from the judgment entered on said order. Order reversed, complaint dismissed, and judgment directed to be vacated, with costs in all courts. Respondent was marketing in appellant's self-service grocery store, reached up to take certain goods from a shelf and, in doing so, came in contact with one of a number of cases or cartons of foodstuffs which were stacked against the shelf fixture, lost her balance and fell. It was customary for cases of foodstuffs to be stacked in this manner preparatory to placing such goods on the shelves. In our opinion no evidence of negligence was adduced (see Hanstick v. Bohack Co., 279 N.Y. 654; Powers v. Montgomery Ward Co., 251 App. Div. 120, affd. 276 N.Y. 600). Nolan, P.J., Wenzel, Ughetta, Hallinan and Kleinfeld, JJ., concur.