
    Emma A. Reeves, Respondent, v. The Fourteenth Street Store, Appellant.
    Second Department,
    January 12, 1906.
    Negligence — injury by slipping on stairway in store— charge.
    The plaintiff claimed to have been injured by slipping on expectorated phlegm on the stairway of a store. -The only evidence of the accident or existence of the phlegm was the testimony of the plaintiff and her husband, who stated that the mass was dried around the edges and looked as. it it had been there , for some time! After the alleged accident no one connected with the defendant was called to look at the condition. Defendant’s employees testified that the stairway was cared for all day, and no such condition existed.
    
      jHeld, that a verdict for the plaintiff was not warranted either on the law or . the facts;
    That, as no knowledge of the condition by the defendant was shown, the verdict could not stand;
    That it was error to charge that' the plaintiff could recover if the stairway was not sufficiently lighted, when no such issue was raised by the pleading.
    
      Appeal by the defendant, The Fourteenth Street Store, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court. ■ -
    
      Theodore H. Lord, for the appellant.
    
      Robert McC. Robinson, for the respondent.
   Gaynor, J.:

The plaintiff slipped and fell on the tread of a stairway in the defendant’s drygoods store. Her husband was by her side. The only negligence charged by the complaint was that defendant permitted the stairway “ to become slippery and dangerous.” The day of the accident her husband wrote to the defendant that his wife slipped on a “wet spot” on the sfairs. She testifies that immediately after the accident she and her husband examined the spot and “it looked like as though some.one had spit up a lot of phlegm there and it had laid there the way it was for two or three days for it had dried around the edges of it and that is what I took it I fell on.” She says it looked as though her heel or the front of her foot had “slipped through it,” which gives an impression of its size. Her husband says : “ It appeared to be a big mouthful, of phlegm that had been there for some time, the edges were all crusty and where her foot went through it you could see the marks of the nails in. the bottom of her shoe.” He gives its size: “ Where it started I should judge it was two inches across it, but where it ’ spread it was about five to eight inches long and you could see the mark of the foot sideways in it.” '

This is the only evidence on the subject on the plaintiff’s side. At the time of the accident no one connected with the. place was called to look at the condition. The defendant called employees who testified that the stairways were eared for all day, and that no such condition existed. They knew nothing of the accident.

The exaggerations of this interested wife and biased husband are manifest. It is difficult to understand ,why counsel allowed them, or how they imposed on any one. The “wet spot’ of the husband’s letter is changed on the trial to a mass of thick phlegm • so large that it is incredible that any human being cast it out. She says it had lain there for two or three days, “ for it had dried around the edges.” This is not evidence, hut a mere statement of a conclusion. -He says it was “ crusty ” on the edges, had been there for “some time,” and that you could see the marks of the nails of her shoe as they went through it, and yet she had on ordinary shoes and not hob-nail shoes.

The verdict was not justified either on the law or the facts. There was no evidence that the defendant knew of the mess On the stairway described by the plaintiff and her husband, nor from which it could be found that it was there so long that in ordinary care the defendant should have known of it and removed it. It .could not remain there long with people constantly walking over it, to say nothing of the store being swept and cleaned daily.

Moreover, the justice charged the jury that they could find a verdict for the plaintiff if the stairway was not sufficiently "lighted, although there was no such issue on the pleadings. The exception to this is also fatal to the judgment.

Hieschbeeg, P. J., Woodward, Jerks and Hooker, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  