Gillon v. Boschen

Patterson, J.:

Without considering the specific grounds upon which the complaint in this action was dismissed, we think the non-suit was properly granted for the reason that the evidence failed to establish any connection between the accident which happened. to the plaintiff’s intestate and the cause to which that accident was ascribed by the plaintiff. It appeared in evidence that the plaintiff’s intestate, a child between two and three years of age, was left by liis mother on' the front stoop of a tenement house in the company of another cliild.abotit five or six years old. It was proven that there was a defect in a railing in the hallway of the fourth story of that tenement house. The defect consisted in the absence of a rung-in the railing, leaving an open space of about eleven and one-half inches. The plaintiff intestate was seen lying.on the hall floor oh the third story of the building, and one of the witnesses for the plaintiff, hearing a, noise as of a heavy body striking the floor, came from her room, and, on looking over the railing from the fourth story, saw the child lying prostrate There is nothing, u hateverin the evidence to show that the plaintiff’s intestate was ever in the hallway on he fourth story, or if there, that he was ever near the opening in the railing or that he fell through the opening; and, from all that appears, the inference that he fell from the stairs is as fairly deduciblé as that he fell through the opening. In other words, the cause of the accident is not proven, and tlie testimony is insufficient to authorize a finding that the existence of the defect in the railing occasioned it. That the child fell through the opening is only a conjecture, and it would have been- improper to allow the case to go to the jury in order that they might found a verdict on a mere guess. What the father of the child testified to, as to carrying the child upstairs sometime after the accident occurred can have no influence upon the case. The offer to prove what the child said to the father when the latter returned home in the evening related to matter clearly inadmissible and was properly rer fused by the court. . The judgment must be affirmed, with costs. Van Brunt, P. J., O’Brien, Ingraham and McLaughlin,- JJ., concurred.