Opinion
June 28, 1949.
Appeal from Supreme Court, Clinton County.
There was proof the floor had not been oiled in three weeks, but there was also some proof from which it could be found it had been oiled four days before the accident. The facts are somewhat similar to those considered in Lendrum v. Victory Chain, Inc. ( 262 App. Div. 424). (Cf. Pratt v. American Stores Co., 262 App. Div. 931, Rothemier v. Holzheimer, 263 App. Div. 781, and Laundrie v. W.T. Grant Co., 241 App. Div. 904. ) Plaintiff's proof established a prima facie case. Judgment of nonsuit reversed, on the law and facts, and a new trial ordered, with costs to plaintiff to abide the event. Heffernan, Santry and Bergan, JJ., concur; Deyo, J., dissents, in the following statement, in which Brewster, J., concurs: I dissent. The record fails to disclose that there was any unusual accumulation or in fact any accumulation of oil whatsoever at the spot where the plaintiff fell. There is also a total lack of evidence that the plaintiff slipped on any oil or that oil was the proximate cause of the accident. On such a record the trial court had no alternative but to grant the motion to dismiss. Since we may assume that the plaintiff adduced all of the evidence available to her, a new trial would serve no useful purpose.