Anne M. Rittlinger, Respondent, Appellant, v. Shulte Real Estate Co., Inc. (Amended on Trial to Schulte Real Estate Co., Inc.), Respondent, Impleaded with Rels Realty Co., Inc., Appellant

Anne M. Rittlinger, Respondent, Appellant, v. Shulte Real Estate Co., Inc. (Amended on Trial to Schulte Real Estate Co., Inc.), Respondent, Impleaded with Rels Realty Co., Inc., Appellant. First Department, June 18, 1941. Andrew F. Van Thun, Jr., of counsel [Isidore R. Gross, attorney], for ,the plaintiff. Frederick E. Crane of counsel [Ralph O. L. Fay with him on the brief; John W. Trapp, attorney], for the defendants. [MAJORITY — Per Curiam.] Per Curiam. Appeal by defendant, Rels Realty Co., Inc., from a judgment entered against it upon a verdict of a jury in favor of plaintiff in an action for personal injuries. An appeal taken by plaintiff from the order setting aside the verdict of the jury against the other defendant, Schulte Real Estate Co., Inc., has been abandoned by plaintiff. In our opinion the trial court erred in confining the deliberations of the jury solely to the question of damages suffered by plaintiff. Whether appellant Reis Realty Co., Inc., had knowledge, or in the exercise of reasonable care should have had knowledge of the dangerous condition which caused plaintiff’s injury and whether, with such knowledge, appellant permitted the dangerous condition to continue because of the negligence and carelessness of its employees, were issues of fact which should have been submitted to the jury. Even if we are to assume, as the court charged, that the doctrine of res ipsa loquitur applies in this case, the question of defendant’s negligence would still be an issue of fact for the jury. By proving the accident, plaintiff adduced reasonable evidence on which a jury might have found a verdict for the plaintiff, but the proof here did not compel such a verdict. (Salmond on the Law of Torts [7th ed.], pp. 33, 34.) The judgment as to the defendant Reis Realty Co., Inc., should be reversed, the action severed and a new trial ordered as to said defendant, with costs to said appellant to abide the event, and the appeal taken by the plaintiff from the judgment dismissing the complaint as against the defendant Schulte Real Estate Co., Inc., dismissed. Present — Martin, P. J., O’Malley, Glennon, Cohn and Callahan, JJ. Judgment appealed from as to the defendant Reis Realty Co., Inc., unanimously reversed, the action severed, and a new trial ordered as to said defendant, with costs to said appellant to abide the event. Appeal by the plaintiff from the judgment dismissing the complaint as against the defendant Schulte Real Estate Co., Inc., dismissed.