Supreme Court, Appellate Term, December, 1914. [Vol. 88. contributory negligence in attempting to cross the track should have been submitted to the jury; and a judgment for the dismissal of the complaint will be reversed and a new trial ordered. PLAINTIFF appeals from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, entered upon the dismissal of his complaint at the close of his case. Samuel Schleimer (Meyer D. Siegel, of counsel), for appellant. James L. Quackenbush (William J. Sheils, of counsel), for respondent. SEABURY, J. The accident happened at a street crossing, at which place the rights of the plaintiff and the defendant were equal. We cannot say, as a matter of law, that the plaintiff was not justified in assuming that the motorman would have his car under control when he approached this place. The car was over a block away when the plaintiff attempted to cross the track, and whether his act in attempting to cross the track constituted contributory negligence should have been submitted to the jury. Upon the facts, this case does not resemble those cases where the driver of a wagon turns his horse and wagon in front of a car a few feet away. The question in dispute was essentially one of fact which should have been submitted to the jury, who could have determined it after taking into account the situation of the parties and the rate of speed at which the car was traveling. BIJUR and COHALAN, JJ., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event. Misc.] Supreme Court, Appellate Term, December, 1914. MADGE GRIMES, Respondent, v. PERCY S. STRAUSS, HER BERT STRAUSS and JESSE I. STRAUSS, Composing the Firm of R. H. MACY & Co., Appellants. (Supreme Court, Appellate Term, First Department, December, 1914.) Evidence when held insufficient to show negligence - absence of proof when doctrine of res ipsa loquitur not applicable. The evidence in an action by a manager of a section in defendants' department store who was struck by the fall of a fire extinguisher from a counter and injured, considered, and held insufficient to show negligence either on the part of defendants or their superintendents. Testimony that extinguishers had previously fallen was not evidence of negligence in the absence of proof as to the cause of such fall, nor was it notice to the employer that the extinguishers were inherently dangerous in the absence of proof that they had inflicted damage on the previous occasion. The doctrine of res ipsa loquitur held not to apply. APPEAL by the defendants from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fourth district, entered in favor of the plaintiff for $150 and costs after a trial by the court without a jury. William Butler (R. Waldo MacKewan, of counsel), for appellants. Bernard Edelhertz, for respondent. SEABURY, J. The action was brought to recover damages for personal injuries sustained by the plaintiff while she was in the employ of the defendants as manager of a section in the household goods department of R. H. Macy & Co.'s department store. The plaintiff testified that she was standing in one of the aisles of Supreme Court, Appellate Term, December, 1914. [Vol. 88. the store between the counters upon which goods were placed for display and sale, and was directing a customer to another part of the store when a large board to which were attached three brass fire-extinguishers fell from one of the counters and struck her in the foot, causing the injuries of which she complains. The board in question had been resting upon an easel upon the counter and was used to display the fire-extinguishers for sale. Daniel J. Murphy, who was the person in charge of the entire basement of the department store, in which place the accident occurred, was called by the plaintiff and testified that he had charge of the placing of goods upon the counters, and that they were placed there under his direction. He also stated that the fire-extinguishers were placed within about four inches from the end of the table. The defendant called several of the girls employed in the plaintiff's section who testified that the fire-extinguishers had remained on the table for several weeks before the accident occurred, in the same position in which they were when they fell. One of the defendants' witnesses testified that she was within five or six feet of the accident when it occurred, and saw it; and that she saw Marian Wolfert, a saleswoman in the defendants' employ, push a pastry board which was displayed on the same counter at the side of the fire-extinguishers, which act jarred the extinguishers and caused them to fall. Marian Wolfert was called in rebuttal by the plaintiff. She admitted that she was selling a board from the same counter at the time of the accident, but stated that she was about five feet from the counter at the time, and did not push it, and that the board was not near the fire-extinguishers. The learned trial justice rendered a decision awarding $150 damages to the plaintiff. I am unable to find in the record any evidence of negligence upon the part Misc.] Supreme Court, Appellate Term, December, 1914. of the defendants or their superintendents. The only evidence offered as to the cause of the falling of the extinguishers was that of the defendants' witness showing that they were pushed by one of plaintiff's fellow servants, for which the defendants would clearly not be liable. This evidence was denied by the plaintiff's witness to whom credence was apparently given by the court in preference to the defendants' witness. There was no evidence of a defect in the easel upon which the extinguishers were displayed, and no evidence that they were placed in a dangerous position upon the counter. The mere statement of one of the witnesses that they had previously fallen from another counter was no evidence of negligence, in the absence of proof as to the cause of the previous fall; and the fact that they had previously fallen would not be notice to the company that they were inherently dangerous, unless it appeared that they had inflicted damage on the previous occasion, which was not shown. The case is certainly not one to which the doctrine of res ipsa loquitur could apply. From the mere fact that the extinguishers fell from the counter, it cannot be assumed that they were negligently placed or that it was negligence to display them upon a counter. They may have been pushed accidentally by one of the clerks, or even by a passing customer, and the chance of a human being having the misfortune to be standing in the spot upon which they fell was so remote that the general situation could not be said to be inherently dangerous or unsafe. The judgment is totally unsupported by proof of negligence in the defendants and should be reversed, with costs, and the complaint dismissed, with costs. BIJUR, J., concurs; COHALAN, J., dissents. Judgment reversed, with costs, and complaint dismissed, with costs. Supreme Court, Appellate Term, December, 1914. [Vol. 88. STEINHARDT BROS. & Co., Appellant, v. JOEL E. Marx, Respondent. (Supreme Court, Appellate Term, First Department, December, 1914.) Contracts undertaking in writing- agreement to pay to an amount not exceeding in the aggregate $500- when limitation relates to extent of liability. Where by an original and primary undertaking in writing defendant in consideration of the sale and delivery of merchandise by plaintiff to D agreed to pay therefor to an amount not to exceed in the aggregate $500, the limitation relates to the extent of defendant's liability to pay and does not restrict the amount of merchandise which plaintiff might deliver to D, and defendant's liability to the extent agreed continues until notice of its withdrawal, notwithstanding plaintiff delivered to D more than $500 worth of merchandise that had been paid for. APPEAL by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, entered in favor of the defendant after trial by the court. Kremer & Strasser, for appellant. Louis Jersawitz, for respondent. SEABURY, J. On the 12th day of May, 1910, the defendant executed and delivered to the plaintiff an instrument under seal in the following language: "For and in consideration of the sum of One ($1.00) Dollar, and other good and valuable consideration, receipt whereof is hereby acknowledged to me in hand. paid by Steinhardt Bros. & Co., a domestic corporation, and in the further consideration of said Steinhardt Bros. & Co. delivering merchandise to P. J. |