Reyes v. Gagliardi 21 A.D.2d 688

In an action to recover damages for personal injury and wrongful death, the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Kings County, entered January 25, 1963 after a jury trial, as dismissed the complaint against the defendants Donato Gagliardi and Pasquale Gagliardi, at the close of plaintiffs’ ease, for failure of proof. Judgment, insofar as appealed from, affirmed, without costs. No opinion. Ughetta, Acting P. J., Christ and Rabin, JJ., concur; Kleinfeld and Hill, JJ., dissent and vote to reverse the judgment and to grant a new trial, with the following memorandum: The infant decedent fell through a space of 16 to 17 inches between 2 horizontal porch railing pipes, not protected by balusters or mesh work. The lower pipe was 16 inches high. Vertical posts were 5 feet apart. There is no dispute that decedent was where he had a right to be. In our opinion, under all the circumstances, the unprotected space constituted a dangerous condition; the defendants should have anticipated the likelihood of a child falling through the space; and hence the defendants should have installed adequate safeguards against the happening of such an accident. A prima facie case of liability on the part of the defendants was established. It was error to dismiss the complaint.