GEORGE MASLIN, as Administrator, etc., of MARY MASLIN, Deceased, Plaintiff,
JOHN H. CHILDS and WILLIAM A. PETAS, as Survivors of Themselves and GEORGE C. BUELL, Deceased, Defendants.
MOTION by the plaintiff, George Maslin, as administrator, etc., for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in the first instance after a nonsuit granted at the close of plaintiff's case on a trial at the Monroe Trial Term in June, 1910.
The action was commenced in September, 1908, to recover damages resulting from the death of plaintiff's intestate, alleged to have been caused solely through the negligence of the defendants.
Frederick Wiedman, for the plaintiff.
William W. Webb, for the defendants.
MCLENNAN, P. J.:
The accident which is the subject of this action occurred at about seven o'clock on the morning of June 10, 1908. At the time, the plaintiff with his wife, the deceased, were occupying apartments over a store on Lyell avenue, in the city of Rochester,
which they had rented from the defendants. The apartments over the store adjoining on the east were occupied by a family named Bemish, who also rented from the defendants. There was a veranda in the rear of such apartments, extending across their entire width, constructed of five posts, which are designated in the testimony as 1 2, 3, 4 and 5, between each of which there was an ordinary rail, and from the under side of it spindles extended to a rail at the floor. Posts Nos. 1 and 2 were located immediately in the rear of plaintiff's apartments, and 3, 4 and 5 immediately in the rear of the Bemish apartments.
On the morning in question plaintiff's intestate passed through her kitchen door and on to the veranda. She went easterly and when between posts 2 and 3, wholly in the rear of the Bemish apartments, she fell or leaned against the rail between such posts, the post gave way and the deceased was precipitated to the ground below and she sustained injuries from which she died soon thereafter.
That the accident happened as claimed by the plaintiff and without negligence on the part of his intestate is fairly inferable from the evidence and is such as would justify a jury in so finding. Indeed, defendants' counsel does not contend to the contrary upon this appeal. So that the only question which need be here considered, aside from an exception to which attention will be called, is, does the evidence, construed most favorably to the plaintiff, tend to establish actionable negligence against the defendants?
There was a separate entrance leading from Lyell avenue to the apartments of the plaintiff and of the Bemish family, and immediately in the rear of plaintiff's apartments there was a stairway leading from the veranda to the ground. There was also a separate way of exit in the rear of the Bemish apartments by means of an inside stairway which led under the veranda and to the back yard. So that there was a way of ingress and egress to the rear of such apartment and, therefore, it was not necessary that either of such tenants should use the way of the other in order to enable them to occupy the veranda or reach the back yard, but it is apparent that it was more convenient for the Bemish family to use the stairway
leading directly from the veranda to the ground and which was located immediately in the rear of ...