Opinion
October 17, 1955.
In an action to recover damages for personal injuries sustained when respondent fell on a stairway leading from a subway station to the street, which stairway it is claimed was covered with about two or three inches of snow and ice, the trial court set aside the verdict on the ground of inadequacy and granted a new trial and denied appellant's motions to dismiss the complaint and for the direction of a verdict. Order reversed on the law, with costs, and complaint dismissed. Twenty-five and eight-tenths inches of snow had fallen on the day the accident occurred, but the snow had virtually ceased falling some two hours before the accident. Under the circumstances, appellant was not charged with the duty of removing all the snow and ice from the steps by the time the accident occurred. ( Greenstein v. City of New York, 273 App. Div. 869; Kelly v. Manhattan Ry. Co., 112 N.Y. 443.) The findings of fact implicit in the verdict of the jury are affirmed except the findings of negligence. Wenzel, Acting P.J., Murphy and Ughetta, JJ., concur; Schmidt and Beldock, JJ., dissent and vote to affirm, on the ground that a question of fact was presented for determination by the jury.