Opinion
November 2, 1942.
In an action by an infant to recover damages for personal injuries and by her father for expenses and loss of services, plaintiffs appeal from a judgment dismissing the complaint at the close of their case. Judgment reversed on the law and new trial granted, with costs to abide the event. According to the evidence, the infant-plaintiff was injured by falling when one of her roller skates caught in a broken part of the pavement in a court yard inside the building line of defendant's apartment house, in which the plaintiffs were tenants. The infant plaintiff was an invitee, and it was for the jury to determine whether the defendant had failed in its duty to exercise reasonable care and prudence to keep its premises safe for her use (cf. Burack v. Washington Cemetery, 258 App. Div. 1071), whether the condition which caused the fall was dangerous, and whether the infant-plaintiff was guilty of contributory negligence. ( Hayton v. McLaughlin, 289 N.Y. 66, 68.) Hagarty, Johnston, Taylor and Close, JJ., concur; Adel, J., dissents and votes to affirm.