Opinion
December 10, 1970
Appeal from the Onondaga Trial Term.
Present — Goldman, P.J., Del Vecchio, Witmer, Gabrielli and Bastow, JJ.
Judgment unanimously reversed on the law and facts and a new trial granted, with costs to abide the event. Memorandum: In reviewing the trial court's dismissal of the complaint at the close of the proof in this wrongful death action we are required to give the plaintiff the benefit of every favorable inference which can reasonably be drawn from the facts ( Philpot v. Brooklyn Baseball Club, 303 N.Y. 116, 119) and to bear in mind that "in a death case plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence. [Cases cited.] Plaintiffs' evidence is deemed sufficient to make out a prima facie case if it shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred." ( Wragge v. Lizza Asphalt Constr. Co., 17 N.Y.2d 313, 320.) Applying these principles, we cannot say that "by no rational process" could the jury have found that the absence of a handrail was a proximate cause of decedent's fall on the stairs of the apartment house where she resided. ( Swensson v. New York, Albany Desp. Co., 309 N.Y. 497, 505; see, also, Wessel v. Krop, 30 A.D.2d 764.) Even if the fall was precipitated by a misstep, "if a hand-rail had been furnished, the decedent might have held on to it as he descended the stairs, and could have avoided falling. Therefore, the absence of the rail, if required by law, would seem to be a proximate cause of the accident." ( Courtney v. Abro Hardware Corp., 286 App. Div. 261, 262, affd. 1 N.Y.2d 717.) Furthermore, the fact that decedent was apparently transporting rubbish and newspapers to the cellar would not, as a matter of law, have prevented her from grasping the handrail if one had been there, especially in light of the testimony that she carried such things "under her arms" when descending the stairs. The court cannot weigh the evidence and it may not direct a verdict merely because it would set aside a contrary verdict as against the weight of the evidence. ( Wearever Upholstery Furniture Corp. v. Home Ins. Co., 286 App. Div. 93.) On a new trial plaintiff will also have an opportunity, which the interest of justice requires, to offer proof demonstrating the applicability of the Multiple Residence Law or the Syracuse Building Code to defendant's premises at the time of the accident.