Opinion
June 19, 1939.
The plaintiff wife has recovered a judgment for personal injuries and her husband for loss of services and medical expenses. Judgment reversed on the law, with costs, and the complaint dismissed, with costs. The plaintiff wife was injured by falling on the fifth step of the stairway leading to the main or street floor of the defendant's store. It is conceded that she was walking down on the right-hand side of the stairway, with her right hand on the banister. The claimed defect is that there was a spot near the center of the tread or step as large as a half dollar and one-quarter of an inch deep and that the step was worn between that spot and the right side where her right foot was placed. It is the plaintiff's contention that the heel on her left shoe, which heel was three-quarters of an inch in diameter, caught in this depression and her right foot slipped on the worn part of the tread, causing her to fall. The photographs offered in evidence by both the plaintiff and the defendant indubitably establish that there was no such depression, hole or indentation in the step. The only defect shown is that the step has become somewhat worn by the passage over it of thousands of the defendant's customers. There is no proof of any previous accident. Under such circumstances no actionable negligence is established. ( Tryon v. Chalmers, Nos. 1, 2, 205 App. Div. 816; Laun v. Karl, 251 id. 718; affd., without opinion, 278 N.Y. 506.) Lazansky, P.J., Hagarty, Carswell, Taylor and Close, JJ., concur.