Opinion
December 7, 1942.
The plaintiff-wife has recovered judgment for personal injuries and her husband for loss of consortium, etc., from which the defendant appeals. Judgment of the County Court of Westchester county reversed on the law, with costs, and complaint dismissed on the law, with costs. The appellant was in charge of a park known as Depew park in the city of Peekskill. In the park it had erected seats or bleachers following the upward slope of the land. These seats consisted of planks placed upon posts set in the ground. To reach the upper seats it was necessary to use steps made by using a ten-inch riser and filling the space back of the riser with gravel or cinders. The plaintiff-wife, accompanied by her husband and daughter, visited the park to witness a display of fireworks furnished by the defendant as a free public entertainment. There was evidence from which the jury could find that after the display was finished and before the floodlights were turned on the plaintiff-wife fell while stepping down from one step to another because she slipped on the gravel. Assuming that some of the gravel or cinders had been scuffed up or loosened, such a state of facts did not create a condition for which the defendant may be held liable for negligence. There was no proof of improper construction or a dangerous condition. Such construction is not unusual or inherently dangerous. There was no duty at common law requiring the defendant to furnish artificial illumination and no claim is made that any statutory law or local ordinance required such illumination. Hagarty, Carswell, Adel and Close, JJ., concur; Lazansky, P.J., concurs in result.