Russell v. Celentano ( 1927 )

WESTERFIELD, J.

Plaintiffs, the father and mother of a negro child, five years old, bring this suit against defendant, the owner of a tenement occupied by plaintiffs, on behalf of their said child for damages alleged to have been sustained by reason of a fall from a balcony caused by rotten balustrades.

Defendant denies the fall and claims his balcony and balustrades to have been in good order.

The evidence shows that the child fell in an alleyway over which the balcony projected, but there is no proof whatever that the child fell from the balcony. Whether the fall was caused by stumbling while running in the alley or by reason of defective or missing balustrades on the gallery above cannot be determined from the evidence. The character of the injuries sustained by the child does not support plaintiff’s theory of the accident. A few teeth were knocked out and there was some bleeding, but the child was quite conscious, in fact, was crying when picked up immediately after the fall, and not unconscious, as plaintiffs allege in their petition. The injuries were quite consistent with a fall while running along the ground and are hardly severe enough to have, been caused by a fall from a height of fifteen feet, the distance between the gallery and the ground.

We have reached this conclusion, notwithstanding the finding of our brother below in plaintiffs’ favor on an issue of fact, because we believe he fell into a palpable error.

The judgment appealed from is reversed, and it is now ordered that there be judgment in defendant’s favor, dismissing plaintiffs’ suit as in case of non-suit.