Opinion
January, 1933.
Order and judgment reversed, on the law and facts, with costs and verdict reinstated, on the ground it was a question of fact for the determination of the jury. All concur, McNamee, J., in part with a memorandum, except Crapser, J., who dissents, with a memorandum. McNamee, J.: I concur for reversal, and vote for a new trial, but not for reinstatement of the verdict, on the ground that there is no proper evidence upon which a jury may find a verdict that the stairs in question were or were not constructed according to proper practice, and, therefore, were or were not reasonably safe for the uses for which they were intended. Standards of construction may not be fixed by juries, but must be shown by evidence. Such proof may be readily supplied on a new trial. Crapser, J.: I vote to affirm for the reason that the undisputed evidence is that the railings in this case were practically such as are generally used in the city of Albany; and on the further ground that the defendant would not have to anticipate the happening of such an accident, and the omission to provide against it would not be actionable under the authority of Loftus v. Union Ferry Co. ( 84 N.Y. 455, 460).