(dissenting). Insofar as the main charge was concerned, this case was submitted to the jury solely on the theory that plaintiff was caused to fall by reason of a dangerous condition, which she described as an accumulation of moisture, rain, mud and debris in the entranceway of the store causing her to slip and sustain injury. Plaintiff had testified specifically that she slipped on some mud.
There was no proof in the record that the defendant had notice of any such dangerous condition. The defendant appeals on the ground of the absence of proof of notice.
We are now upholding the judgment on the theory that the failure to supply a mat at a time five hours after the end of a rainstorm justified a verdict in plaintiff’s favor, because the defendant should have known that such mat was required in view of the fact that there was still some moisture in the streets.
After the main charge, several requests were made specifically referring to a practice to use mats and to the right of the jury to find negligence in the absence thereof. These requests were all refused. Thereupon, several other requests were granted in general language to the effect that it was the duty of a business establishment to take precautions to prevent known danger, and that the failure to use such appliances as would keep the premises safe may be evidence of negligence. These were the only portions of the charge from which a jury could have found negligence on the theory of the absence of a mat.
When one considers the specific form of the requests previously denied, it would seem that the jury would not understand that these general statements permitted them to consider the absence of a mat as the basis of a finding of negligence, and *629that, therefore, we are affirming the judgment on a theory not passed on by the jury.
I dissent, and vote to reverse the judgment appealed from and order a new trial.
Peck, P. J., Bastow and Rabin, JJ., concur with Botein, J.; Callahan, J., dissents and votes to reverse and order a new trial, in opinion.
Judgment affirmed, with costs.