
    Mary Gallagher, Appellant, v. Abraham Halpern, Respondent.
    (Supreme Court, Appellate Term, First Department,
    May, 1916.)
    Negligence—■ when burden on defendant to show freedom from — evidence — appeal.
    In an action for personal injuries the evidence on behalf of plaintiff must be taken as true on the hearing of an appeal from a judgment dismissing her complaint.
    Where in an action to recover for personal injuries it appears that a purchaser of goods in defendant’s store fell through a door in the floor, which door when closed came even with the floor but which had evidently been left opened, the burden is upon defendant to show his freedom from negligence, as he impliedly invited plaintiff upon the premises which were under his entire control.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, dismissing.the plaintiff’s complaint at the close of the plaintiff’s case.
    Robert A. McDuffie, for appellant.
    Jacob M. Cohen, for respondent.
   Guy, J.

This case was tried before the court with a jury. At the close of the plaintiff’s case, on motion of the defendant’s attorney, the complaint was dismissed. In such a case the testimony of the plaintiff and the witnesses called on her behalf must be taken as true. The action is brought to recover for personal injuries received by the plaintiff through the alleged negligence of the defendant. The defendant keeps a store in this city for the sale of carpets, oil cloths, linoleum, etc.

On the 9th day of November, 1914, at about six o’clock in the evening, the plaintiff entered the store for the purpose of purchasing some linoleum. While she was examining the goods the telephone bell rang and the defendant who was showing the goods went to the place where the telephone was kept, at the same time saying to plaintiff you look along there, and see if you see another piece that will suit you better than the one you have chosen.” As plaintiff was walking along examining some of the other pieces, she suddenly fell through a hole in the floor, the door of which when closed came even with the floor, but which had evidently been left open. She received injuries for which she was under medical treatment for some time. She was corroborated by one witness who was apparently disinterested. It was shown that the opening in the floor was in the rear of the store, about five feet from the rear wall, and that the store in that part was dimly lighted at the time of the accident. A mere recital of these facts shows that the defendant was put upon his proof as to his freedom from négligenee under the circumstances shown. He had impliedly invited the plaintiff upon his premises and they were under his entire control: The rule in such cases is that where the thing is shown to be under the control and management of the defendant, or his servants, and. the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. McNulty v. Ludwig & Co., 153 App. Div. 206, and cases there cited.

Bijub and Cohalax, JJ., concur.

Judgment reversed, and new trial ordered, with thirty dollars costs to appellant to abide event.  