In an action to recover damages for personal injuries, the appeal is from a judgment, entered on a jury's verdict, in favor of respondent. Respondent was injured as a result of stepping on a loose stone along a way by which race track patrons, including respondent, could reach an exit. The stone was oval, about two inches thick and four inches long, and lay in grass about four to five inches high. Judgment reversed, and a new trial granted, with costs to abide the event. The proof adduced as to notice, either actual or constructive, was inadequate (cf. Handy v. Hadley-Luzerne Union Free School Dist. No. 1, 277 N.Y. 685; Acorn v. State of New York, 286 App. Div. 940; Hogan v. State of New York, 2 Misc.2d 174, affd. 4 A.D.2d 851). Under the circumstances here it is our opinion that in the interest of justice there should be a new trial.
Nolan, P.J., Ughetta, Kleinfeld and Christ, JJ., concur; Brennan, J., dissents and votes to affirm the judgment, with the following memorandum:
There was no exception to the charge, which left the question of constructive notice for the jury's determination. The area in question was under the control of the appellant, and the question of constructive notice was for the jury.