Opinion
June 28, 1949.
Appeal from Supreme Court, Rensselaer County.
Present — Foster, P.J., Heffernan, Brewster, Deyo and Santry, JJ. [See post, p. 1005.]
She brought action to recover for personal injuries, and her husband, the other plaintiff, to recover for his wife's expenses and loss of services. It had snowed during the night before the accident. During the day rain and sleet had fallen. Packed snow to the depth of two inches, which had been trampled down, covered the concrete steps. It was bumpy. Sand had been placed on top of the snow about 2:00 P.M. At 4:45 P.M., defendant's supervisor observed that the steps were icy and slippery from sleet. He directed a workman to put calcium chloride on the surface, but left the premises at 5:00 P.M., before the workman had finished. There was no evidence to indicate the effect of the calcium chloride or the extent of its application. No attempt was made during the day to remove the packed snow. The plaintiff wife was aware of the slippery condition. She entered the store over the same steps at about 6:00 P.M. At 6:30 P.M. she left the store carrying four bulky bundles. She followed her husband who preceded her down the steps carrying a baby. She testified that she observed the steps to be slippery and looked as she started to go down. She did not take hold of a guardrail beside which she was descending. She slipped on the second step and fell. Her husband had been proceeding some distance ahead of her without mishap. She testified she was not hurrying. The fact that she was encumbered by bundles, and the fact that she did not use the handrail were matters to be considered by the jury in determining the question of contributory negligence. Neither of these two facts of themselves constituted negligence as a matter of law. ( Palmer v. Dearing, 93 N.Y. 7.) The evidence was sufficient to sustain the verdict of the jury and support their findings as to negligence and freedom from contributory negligence. Judgment and order unanimously affirmed, with costs.