Greene v. Sibley, Lindsay & Curr Co.

177 N.E. 416, 257 N.Y. 190, 1931 N.Y. LEXIS 835



The measure of a defendant's duty is reasonable care. 


The claimant was a customer at a department store and was standing at a sales counter. At the same time, a mechanic was servicing the cash register, which the claimant was told was out of order. The claimant turned to pick up her change from the counter, and when she turned back around, the mechanic had dropped to his knees, and the claimant tripped over his foot. The claimant brought an action against the movants for negligence. The trial court entered a judgment for the claimant, after denying the movants' motions for nonsuit and a directed verdict. The court reversed the judgment and directed that the complaint be dismissed, holding that the movants did not breach their duty of reasonable care.


Is there negligence in this case?




The mechanic had been standing by the plaintiff, busy, as she perceived, in the repair of the machine. She had no thought that he had gone away during the moment or two that had passed in the collection of the change. On the contrary, she supposed, so she says, that he was standing where he was before. "I thought I was making a sweep around him standing there." The merest glance would have told her that instead of standing there erect, he was down upon his knees. We do not say that there was contributory negligence on her part in the failure to be more observant of the fact that his attitude had changed. It is quite a different thing to say that there was negligence on his part in the failure to foresee how little observant she would be.

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