Opinion
May 29, 1939.
Present — Lazansky, P.J., Johnston, Adel, Taylor and Close, JJ.
In an action for damages for personal injuries, defendant appeals from a judgment for plaintiff entered on a verdict, and from an order denying defendant's motion to set aside the verdict and for a new trial. Judgment and order unanimously affirmed, with costs. Defendant's chief contention is that plaintiff was guilty of contributory negligence as matter of law. On a dark night, while rain was falling, plaintiff, the guest of a tenant in a building owned and controlled by defendant, entered upon a finished concrete walk running in from the street alongside the building. Shrubbery overhanging the walk on the right side brushed against his arm and he took one step to the left onto a finished concrete surface and, after taking a few steps in his original direction, fell to the bottom of a flight of concrete steps alongside the walk and was injured. A metal fence separated the well of the steps from the walk, but there was no gate or other barrier across the top of the steps. Because of inadequate light and intervening shrubbery, plaintiff was unaware of the presence of the steps, but he could see the walk faintly. It was for the jury to say whether or not the presence of the walk was an implied invitation to plaintiff to use it, and also whether or not the presence of the finished concrete surface onto which he stepped from the walk was an implied assurance to him that he could proceed ahead safely. The question of his contributory negligence was for the jury. ( Christensen v. Hannon, 230 N.Y. 205, 208; Nelson v. Nygren, 259 id. 71, 75-76.) The evidence warranted a finding that defendant was negligent ( Beck v. Carter, 68 N.Y. 283, 293; Healy v. Vorndran, 65 App. Div. 353), and defendant, stressing plaintiff's alleged contributory negligence, does not seriously contend otherwise.