On appeal from the Supreme Court.
For the respondent, Alfred D. Antonio.
For the appellant, George J. Miller.
The opinion of the court was delivered by
WELLS, J. This action was brought by the plaintiff to recover compensation for personal injuries received by her as a result of a fall from a landing at the top of a stairway leading to her apartment on the second floor of an apartment house, caused by the collapse of a guard rail surrounding said landing. It is not denied that the stairway and landing were used by plaintiff in common with other tenants of defendant and that defendant retained control over them and that it was
the duty of defendant to use due care to maintain them in a reasonably safe condition after he had notice or knowledge.
The plaintiff went out upon the landing in the rear of her apartment to call her son who was in the yard below, and leaned over the rail, with her hands thereon, when the rail broke causing her to fall to the ground below.
The trial resulted in a verdict in favor of the plaintiff and it is from the judgment entered in the Supreme Court upon this verdict that defendant appeals.
The grounds of the appeal are that the trial court ought to have directed a nonsuit or a verdict for the defendant, because there was no proof of knowledge on the part of the latter of the defective condition of the guard rail, and that, therefore, there was no proof of negligence or liability, and further that there were errors in the charge of the court to the jury.
It is true that there was no proof of actual knowledge on the part of the defendant of the unsafe condition of the guard rail, but the plaintiff proved that the railing which gave way was rotten. Photographs of the stairway and landing and the rail itself were introduced in evidence and while the rail is not produced in this court, yet the jury saw and examined it and the witnesses described it as being rotten, and this being so, it seems to us that the defendant was chargeable with notice, under the doctrine laid down in the case of Stark v. The Great Atlantic and Pacific Tea Co., 102 N.J.L. 694. In that case plaintiff tripped over a splinter in a rotten board in the floor of defendant's store. There was no proof of actual notice nor of the existence of the defect for any length of time. The trial court directed a verdict for defendant. This court reversed the judgment and in the opinion, the court cited cases to the effect that plaintiff must show that the defect had either been brought to the previous notice of defendant, or failing in proof of such actual notice that the defect had existed for such a space of time before the occurrence as to afford the defendant a sufficient opportunity, in the exercise of reasonable care upon defendant's part to make proper inspection and repairs; Mr. Justice
Campbell, speaking for the court, after citing other cases to the effect that mere proof of a defective condition of the premises at the time of the happening is not sufficient to satisfy the requirements and make the question of ...