Zubas v. Coffey ( 1958 )

Action by a visitor to a funeral parlor against the owners of the premises and the lessee thereof, who also is the operator of the funeral parlor, to recover damages for personal injuries alleged to have been received when she fell from a retaining wall at one side of the motor vehicle driveway on the premises. The appeal is from a judgment entered on a jury verdict in favor of the visitor. Judgment reversed on the law and the facts, without costs, and complaint' dismissed. The top of the retaining wall was sufficiently lighted. It was not within the range of reasonable foreseeability on appellants’ part that respondent would forego the safe entrance and ascend to the top of the retaining Wall for the purpose of directing the parking of a motor vehicle. In any event, we would grant a new trial on the ground that the verdict was against the weight of the evidence. Wenzel, Acting P. J., Murphy, Ughetta and Hallman, JJ., concur; Kleinfeld, J., dissents and votes to affirm, on the grounds that the proof presented issues of fact as .to appellants’ negligence for determination by the jury, and that the jury’s determination was adequately supported by the proof.