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ROSENTHAL v. PENNSYLVANIA R. CO.

May 15, 1942

ROSENTHAL
v.
PENNSYLVANIA R. CO.



The opinion of the court was delivered by: BYERS

BYERS, District Judge.

This is an action tried to the Court in which the plaintiff seeks a judgment because of the alleged negligence of the defendant in failing to keep a portion of the stairway at the 8th Avenue entrance of the Pennsylvania Terminal, in the City of New York, free from a foreign substance the presence of which caused her to fall had break her leg.

The facts are found to be as follows:

 1. On July 10, 1939, at about 10:30 p.m., the plaintiff, accompanied by her sister, Mrs. Staple, and the latter's husband, was descending the stairway leading from the 8th Avenue entrance, in the Pennsylvania Terminal, New York City, and her left foot at the second step encountered the remains of an orange, causing her to slip, as the result of which she slid down about six stairs in a sitting posture with her leg crumpled under her; this resulted in a fracture of the lower third of the left fibula, oblique in form, and there was no overriding of the fragments.

 2. The plaintiff was confined to her home for about six weeks, during which time she received competent medical treatment, diathermy, massage, etc., and a complete cure was accomplished.

 3. The plaintiff incurred medical expenses of a reasonable value of $40.00, plus $20.00 for X-ray films, about $30.00 in taxi fares, and the cost of a crutch which she used for a time, of $15.00, amounting to $105.00 in all.

 These are the only elements of out-of-pocket damage shown by the evidence.

 4. The proof fails to establish that the condition causing the plaintiff's injury was known to the defendant.

 5. The condition which caused the plaintiff's injury was not shown to have existed for a sufficient time to charge the defendant with knowledge thereof.

 6. Negligence on the part of the defendant has not been shown.

 Conclusion of Law.

 There must be judgment for the defendant, dismissing the plaintiff's complaint on the merits, with costs.

 The foregoing invite but brief comment:

 The happening of the accident was established, and the defendant offered no ...


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