Opinion
August 1, 1961
Appeal from an order of the Supreme Court, Madison County, denying appellant's motion to set aside the verdict and for a verdict in her favor. Respondent, Ola Hull, fell and was injured on appellant's premises while returning a bowl owned by appellant and delivering Christmas cards which appellant had agreed to purchase from the American Legion Auxiliary on whose behalf respondent was acting gratuitously. Arriving at appellant's house at approximately 5:00 P.M., respondent proceeded directly to a rear entryway which provides access solely to appellant's second-floor apartment, knocked and entered. Proceeding up a stairway respondent made a left turn into a hallway leading to the door of the apartment and fell sustaining the injuries complained of. The hallway contains a nine-inch step-down immediately adjacent to the landing at the top of the stairs. There was no light in the hallway but the doors to the entrance and the apartment door were of a type which allowed the passage of some light. Respondent was unable to testify what caused her to fall. Despite repeated questioning all that she could testify was that she was proceeding down the hall toward the rear door when she fell. There is thus no act or omission by appellant in the record to which respondent's fall can be directly attributed. Appellant takes exception to the following portion of the Trial Judge's charge to the jury: "It is not disputed that Mrs. Hull did fall. Mrs. Hull, herself, does not exactly say how or why she fell. Your task will not be to decide from the conflicting evidence what caused this fall. Your task will be to take the evidence you have heard and reconstruct the actual happening of this accident." In our opinion, on the evidence in this record, this charge was improper in that it permitted the jury to speculate as to the cause of the accident. The plaintiff has the burden of proof; she must show that some act or omission of the defendant was the proximate cause of her fall. The jury must not be left to mere conjecture and the possibility that the fall was caused by some negligent act or omission of defendant, although upon proper proof a verdict for plaintiff might rest on circumstantial proof of negligence. We further agree that the trial court erred in its charge as to respondent's status. Throughout the court's charge reference to "reasonable care" would import that the court considered respondent to be a business invitee and yet upon request of appellant's counsel the court charged that she took the premises as she found them and was "entitled to no greater protection than a member of the owner's family", the proper charge if respondent were a social guest or a bare licensee. The setting forth of two standards in the same charge could not properly instruct the jury as to the duty of care appellant owed respondent ( Moore v. Crestwood Manor, 286 App. Div. 851). Order and judgment reversed and a new trial ordered, with costs to abide the event. Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.