La Rocco v. Zeltmann

— Action by plaintiff wife to recover damages for personal injuries and by her husband for expenses and loss of services. The plaintiff wife claimed that she fell on the wooden stoop in front of her house because of an oily slime that she claimed was formed when rain fell on the steps which had been painted five months previously, although in dry weather the surface of the steps was satisfactory for its purpose. Judgment entered on the verdict of a jury in favor of plaintiffs reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs. No actionable negligence was established. Carswell, Adel, Lewis and Aldrich, JJ., concur; Close, P. J., concurs as to reversal of the judgment but dissents as’ to dismissal of the complaint and votes to grant a new trial, on the ground that although the' verdict is against the weight of the evidence a question of fact is presented which should be passed upon by a jury on the basis of all the. evidence, including the testimony of experts as to whether the condition claimed by the plaintiffs to exist is chemically possible.