Hynes v. Railway Express Agency, Inc. , 46 N.Y.S.2d 18 ( 1944 )

Action to recover damages for personal injuries sustained by plaintiff when an automobile in which she was a passenger came in contact with a traffic light stanchion located in the roadway of South Street at or near the intersection of Fulton Street, Manhattan. Plaintiff claims that the automobile skidded into the stanchion because of a slippery, oily and slimy condition of the roadway, caused by the defendant in the handling of shipments of fish at a shed maintained by the defendant in the roadway under a permit issued by the city of New York. Judgment in favor of defendant reversed on the law and new trial granted, with costs to appellant to abide the event. The court erred in refusing to permit plaintiff to prove the happening of similar accidents at the place in question, and that the conditions which obtained in the roadway at the time of the prior occurrences were similar to those which prevailed on the night plaintiff sustained her injuries. Close, P. J., Johnston and Lewis, JJ., concur; Hagarty and Adel, JJ., dissent and vote to affirm.