July 2, 1940.
Plaintiff, a roomer in the rooming house of defendant, who was the lessee of the entire building, was injured while leaving the premises when she caught her heel in a hole or depression in the top step of the front steps. The case was tried in the City Court of Albany and the jury rendered a verdict of $350 in favor of plaintiff. The City Court set the verdict aside and dismissed the complaint, and the County Court upon appeal affirmed the dismissal. From the order and judgment of dismissal plaintiff appeals. The courts below have held that the hole or depression was so slight that its existence and the failure of the defendant to repair it after notice did not constitute negligence as a matter of law, and there was, therefore, no question of fact to submit to the jury. We are unable to agree with this conclusion. There was a conflict in the testimony over the size of the depression, but this dispute by no means covered the complete essence of the case. Not only its size, but its shape, and more particularly its location, were important essentials. Whatever its size, it was near the railing on the steps so that a person would be likely to pass over it to get to the railing. We think the question of whether it constituted a dangerous condition under the circumstances was for the jury ( Durr v. N.Y.C. H.R.R.R. Co., 184 N.Y. 320); as was also the issue of contributory negligence on the part of the plaintiff ( Keating v. Mott, 92 App. Div. 156). The order and judgment of the Albany County Court should be reversed, with costs, and the verdict reinstated. Order and judgment reversed, with costs, and the verdict reinstated. Hill, P.J., Bliss, Heffernan, Schenck and Foster, JJ., concur.