Opinion
February 15, 1966
Judgment based on an order directing a jury verdict in favor of defendants in personal injury negligence action unanimously reversed, on the law, the judgment vacated, and a new trial ordered, with $50 costs to abide the event. Plaintiffs made out a prima facie case on the issues of negligence and freedom from contributory negligence, and therefore the court was without power to direct a verdict ( Sagorsky v. Malyon, 307 N.Y. 584, 586; Wearever Upholstery Furniture Corp. v. Home Ins. Co., 286 App. Div. 93). The expert witness testified with respect to his experience in retail store floor construction and, in effect, that the construction in question did not conform to safe and proper construction and practice. This was sufficient to raise an issue of fact for the jury ( Meyer v. West End Equities, 12 N.Y.2d 698, revg. on dis. opn. of Mr. Justice VALENTE at the Appellate Division, 13 A.D.2d 938; Berman v. H.J. Enterprises, 13 A.D.2d 200, 201-202; Richardson, Evidence [9th ed.], § 192). While the evidence in plaintiffs' favor was weak, indeed, and might have warranted the court in setting aside a verdict in favor of plaintiffs, there was no basis for direction of a verdict ( Wearever Upholstery Furniture Corp. v. Home Ins. Co., supra).
Concur — Breitel, J.P., McNally, Stevens, Eager and Steuer, JJ.