On appeal from the Passaic County Circuit Court.
For the respondents, Milton M. Richmond (Alexander M. MacLeod, of counsel).
For the appellants, Cohen & Klein.
The opinion of the court was delivered by
TRENCHARD, J. The defendants below, and appellants here, were the owners of an apartment house in Passaic occupied by two families. Access to the apartments was by common halls and stairways. The plaintiff James Stathos rented and occupied with his family the second floor apartment. On January 22, 1929, at nine-thirty P.M., the plaintiff Agnes Stathos, the wife of the tenant, fell down the stairway, and suffered injuries as a result thereof, on account of which she and her husband seek compensation in this suit. There was a verdict in favor of both plaintiffs, and from the consequent judgment the defendants appeal.
It is first urged that the trial judge erred in refusing to grant a motion for a nonsuit and a motion for a direction of a verdict for the defendants.
We think not. The defendants contend that the motions should have been granted because there was no evidence of a contractual relationship between the defendants and the plaintiff Agnes Stathos. But that contention ignores the fundamental ground of the complaint and the evidence by which it was supported at the trial. The gravamen of the plaintiffs' complaint was that the defendants had assumed to light the stairs and failed in the performance of that duty, and the question of negligence of the defendants in that respect was submitted to the jury.
This apartment house was not a "tenement house" within the meaning of the statutory definition. Chapter 337, laws of 1927. This is therefore not a case of a breach of duty imposed by the statute to keep a light burning in the hallway at certain hours such as Pesin v. Jugovich, 85 N.J.L. 256; nor is it strictly a case of the breach of a duty which the landlord owes to his tenants to take reasonable care to have common halls and stairways reasonably fit for use for the passage of the tenants and their visitors, of which Gillvon v. Reilly, 50 Id. 26, is an example. As pointed out in Gleason v. Boehm, 58 Id. 475, while the landlord is required to take reasonable care to have the common halls and stairways reasonably fit for use for the passage of the tenants, he is under no obligation to furnish means for their safe use, and is therefore under no duty (unless assumed by contract) to furnish a light, although such light may be necessary for safe use. Incidentally in that case it was said: "The landlord doubtless may, and probably usually does, assume the duty of providing necessary light in such cases by contract with his tenants. There was evidence that defendant had usually provided a light in the lower hall and had employed a person to light it. Upon this evidence the court might have been requested to direct the jury to determine whether an implied contract to maintain such light, at least until notice of its discontinuance had been given, might not be inferred
and a corresponding duty to maintain it. But no such request was made and we cannot consider now, whether, if made, it could have been properly granted." The underlying principle of the question there stated, but not decided, was invoked in Rhodes v. Fuller Land and Improvement Co., 92 Id. 569. Then and there we held that if a landlord of an apartment house assumes the duty of providing and maintaining a light upon the common stairway, it continues thereafter to be his duty to exercise reasonable care to maintain a light there until notice of its discontinuance has been given, and failure to perform such duty is negligence for which the wife of a tenant who is injured because of such negligence, whilst herself in the exercise of due care, is entitled to recover. That rule is applicable to the present case and is a sufficient reason for denying the motions to nonsuit and to direct a verdict for the defendants which were rested upon the ground that there was no evidence of a contractual relationship between the landlord and the wife of the tenant. It was a sufficient reason because in the present case it was open to the jury to find from the evidence, if they saw fit, that the defendants at the request of the tenant, assumed the duty of providing and maintaining a light on those stairs in the night time, and in fact for a time maintained such light, but thereafter discontinued it without notice to the plaintiff of their intention so to do, and that such negligence was the proximate cause of the injury to the tenant's wife. The evidence tends to show that, not only was no notice of intention to discontinue given, but upon the landlord's attention being called to the failure of his janitor to keep the lights lit, he promised "to fix it" and failed so to do for an unreasonable time.
The next point concerns an alleged error in the charge. The defendants took only a general exception to a portion of the charge which embraced several distinct and independent legal propositions. While error is assigned upon the entire portion of the charge excepted to, yet it is here contended that only one of the several ...