Opinion
October 15, 1951.
In an action by plaintiff wife to recover damages for personal injuries sustained in a fall upon an icy paved area between the appellant railroad company's station and its railroad tracks and by her husband for expenses and loss of services, judgment, entered upon the verdict of a jury in favor of plaintiffs against the railroad company, insofar as appealed from, reversed upon the law and the facts and a new trial granted, with costs to appellant to abide the event. By a written lease received in evidence appellant railroad company had, prior to the accident, leased that paved area for a term of years to the Village of Mamaroneck for use as a public parking space, and the area was so used thereafter and at the time of the accident. That lease provided that the paved area would, during the term of the lease, be maintained by the village. Evidence was introduced by both appellant and respondents bearing upon the maintenance and control of the paved area at the time of the accident. It is our opinion that this record presented a question of fact upon the control of the area and the duty to maintain it, which should have been submitted to the jury and not determined by the court; and that it was error to charge the jury that they should not consider the lease and to charge that it was appellant's duty to maintain the area in a reasonably safe condition. Nolan, P.J., Carswell, Johnston, Sneed and MacCrate, JJ., concur.