
    Pauline Sennert, Respondent, v. Charles Weisbecker, Appellant.
    (Supreme Court, Appellate Term, First Department,
    November, 1913.)
    Negligence — action to recover for personal injuries—no proof that defendant did not use due care in maintaining his place of business — new trial.
    Where in an action to recover for personal injuries alleged to have been sustained by plaintiff while in defendant’s store through slipping upon a piece of meat upon the floor the only witness for plaintiff, other than herself, testified that at the time of the accident plaintiff said she did not know what had caused her to slip and that he, the witness, looked all round and-saw nothing but sawdust on the floor, and the evidence is well-nigh conclusive that defendant used every known and possible effort to keep his store in a clean and safe condition, a judgment in plaintiff’s favor will be reversed and a new trial granted.
    The mere fact, if it was a fact, that there was a piece of meat on the floor at the instant that plaintiff slipped was no proof that defendant did not use due care in maintaining his place of business.
    Appeal by defendant from a judgment of-the Municipal Court of the city of New York, borough of Manhattan, seventh district, in favor of plaintiff, entered after a trial by a judge without a jury,
    Herrick C. Allen (L. H. Scleider, of counsel), for appellant.
    Maurice B. and Daniel W. Blumenthal, for repondent.
   Bijur, J.

This action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff while on the premises of defendant, who maintains a large butcher store, through slipping upon a piece of meat upon the floor of the store, which meat she says was about as large as her heel.

But one witness, apart from herself, was examined on her behalf, and he. testified that at the time of the accident she said she did not know what had caused her to slip and that he himself looked all around and saw nothing but sawdust on the floor. It is altogether probable, therefore, that this judgment should be set aside as against the weight of evidence. Klassen v. Interborough Co., 116 App. Div. 158.

It is plain, however, that no negligence on the part of defendant has been shown. The mere fact, if it was a fact, that there was a piece of meat on the .floor at the instant that plaintiff slipped, is no proof that defendant did not use due care in maintaining his place of business. Kelly v. Otterstedt, 80 App. Div. 398; Kipp v. Woolworth, 134 N. Y. Supp. 646. The evidence of the defendant is well nigh conclusive that he used every known, and, indeed, every possible, effort to keep his place in a perfectly clean and safe condition. Shaw v. Webber, 79 Hun, 307, cited by respondent, is not decisive, although the court does say (at p. 308) that evidence analogous to that in the case at bar was sufficient to sustain the finding that the negligence of the defendant ór his servants permitted a piece of suet or fat to be left on the floor.” It is plain that that remark is casual. The court says significantly: The questions of defendant’s negligence and of the plaintiff’s freedom therefrom were not really litigated on the trial! ” Thereafter follows a long discussion of the only question really raised in that case, namely, of the right of the plaintiff to impeach a release executed by her without restoration of a sum of money which she alleged had been given to her by the defendant as ■ a gift.

Seabury and Guy, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.  