Opinion
May, 1898.
Benjamin Loeser, for appellant.
O.J. Hochstadter, for respondent.
The plaintiff has recovered judgment against the defendant for damages, flowing from injuries which she has alleged and which the court below has found to have been caused by the negligence of the defendant. The facts of the case are practically undisputed. The plaintiff testified that she went into the auction room of the defendant, who seems to have been engaged in the business of selling furniture and other articles at public auction, for the purpose of bidding at a sale which was then going on in that place. After she had entered the store, she observed, among other property apparently to be sold, three tables which were placed one upon the other, the table at the top being a small one weighing about ten pounds. She states that she was standing with her back to these tables when she heard a rattle behind her, and was immediately struck by the falling of the upper table and suffered the injuries complained of. The witnesses on behalf of the defendant testified that the fall of the table was occasioned by the act of a stranger who was attending the sale and who was seen by them handling the table, and that it fell while it was in his hands. This testimony was given not only by an employee of the defendant, but also by another person, a bystander, who was entirely disinterested. The evidence thus given was not contradicted by the plaintiff. She herself was not in a position to observe the cause of the occurrence, nor did she produce any witness for the purpose of giving any other version of it. Upon this state of the fact it is obvious that there was no evidence of negligence on the part of the defendant, and the justice below should have dismissed the complaint. Steiker v. Plath, 19 A.D. 376.
Judgment reversed and a new trial ordered, with costs to the appellant, to abide the event.
GILDERSLEEVE and GIEGERICH, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.