Opinion
January 25, 1943.
In separate actions, tried together, one by a wife to recover damages for personal injuries and the other by her husband for expenses and loss of services, defendant appeals from a judgment in favor of plaintiffs, entered on a trial before the court without a jury. Judgment reversed on the law and the facts and a new trial granted, with costs to abide the event. Plaintiffs were tenants of the upper floor of a two-family house owned by defendant. It was alleged that plaintiff-wife sustained injuries when her heel caught in a hole in the carpet on the stairway leading to her apartment, which caused her to fall to the floor at the foot of the stairway. In our opinion, on the issue of defendant's negligence the decision of the trial court is against the weight of the evidence. Close, P.J., Carswell, Adel and Taylor, JJ., concur; Johnston, J., dissents and votes to affirm.