Opinion
July 9, 1959
Appeal from the Niagara Trial Term.
Present — McCurn, P.J., Kimball, Williams, Bastow and Halpern, JJ.
Judgment reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The plaintiff had a verdict for injuries alleged to have been sustained by a fall on the defendant's premises. It was established that the plaintiff was a business invitee. The theory of liability, as set out in the complaint, was that on the day of the accident, "and for many days preceding", the defendant permitted an accumulation of ice or icy condition on the floor of the warehouse. There was no claim that the defendant itself had caused this alleged condition nor proof that it had actual notice of the same. Whether there was an icy condition of the floor and for what length of time and whether in the exercise of reasonable care, the defendant should have discovered and corrected the condition or given warning of the same, were jury questions, under proper instructions. In the main charge, nothing was said as to notice, actual or constructive. After the jury retired, the court entertained requests. Defendant asked the court to instruct the jury "that in order to hold the defendant liable for a defect in the way of an icy condition of the premises, it was not only necessary for plaintiff to prove that there was such ice on the premises, but that the defendant either had notice of this defect or should have known of it in the exercise of due care in the maintenance of the premises." The court declined to so charge and defendant excepted. Failure to properly instruct the jury on the subject of notice was error. All concur.