On appeal from the Hudson County Circuit Court.
For the respondents, William L. Rae.
For the appellant, Collins & Corbin (Edward A. Markley and James B. Emory, of counsel).
Before Gummere, Chief Justice, and Justices Parker and Case.
The opinion of the court was delivered by
CASE, J. The plaintiffs, wife and husband, were monthly tenants of the defendant, occupying the second floor of a building in which there were other tenants. There was a common stairway. On July 4th, 1928, Mrs. Farrell was injured by a fall as she was descending the stairs.
The action is by Mrs. Farrell for her personal injuries and by Mr. Farrell for consequential damages. Verdict went for the plaintiffs. At the beginning of the trial the defendant admitted ownership of the premises and the control and maintenance of the stairway.
Defendant appeals and writes down three points on the brief. Under the first point it is argued that the plaintiff was, as a matter of law, guilty of contributory negligence; that she assumed the risk of the injuries she received in attempting to use the stairway when she knew of its condition; that more than a reasonable time for the landlord to make the repairs had elapsed after the alleged promise to repair and that after the expiration of that reasonable time the plaintiff assumed the risk of the injury she received; wherefore the trial court should have granted either the motion for nonsuit or the motion to direct a verdict in favor of the defendant.
The cause of the plaintiff's fall was a hole in the stair covering. The Farrells had become tenants of the defendant on March 22d, 1928, and then or soon thereafter complaint was made by them, or on their behalf, to the defendant regarding the dilapidated condition of the stair covering. The plaintiff's evidence is that the defendant, through her agent, promised to have the condition rectified "as soon as she gets the chance." Repairs were not made and about June 20th or June 22d Margaret Farrell, as she testifies, again complained to defendant's agent and a new promise was made to repair the defect. It was held by our Court of Errors and Appeals in Ionin v. E.D. & M. Corporation, 107 N.J.L. 145; 151 A. 640, that the landlord's promise to repair relieves the tenant of the burden of assuming risk during the time reasonably proper for making repairs. The defective condition of the stair covering was not such as to import inevitable mishap from the use thereof. It did not portend such imminent disaster as would a wall that was leaning and bulging to the extent that clearly it was about to fall. A tenant may not court death or injury by continued exposure to certain catastrophe even on the landlord's assurance that repair will be made. But under the circumstances of the
present case, the defendant having on June 20th or 22d renewed her promise to repair, and the accident happening on July 4th, we think that the reasonableness of the intervening period was for determination by the jury. We cannot say that as a matter of law the plaintiff either assumed the risk or was guilty of contributory negligence.
Under the same point defendant argues that the condition of the stairs at the time of the accident was created by the acts of the plaintiff Robert Farrell in attempting to repair. There is evidence that Robert Farrell had tacked some linoleum over holes in the stair covering, but the record was not such as to require the court, on a motion for nonsuit or direction, to determine as a matter of law that Robert Farrell's action in that respect had caused or contributed to the fall. Neither is the testimony that a part of the rental agreement was that the plaintiffs should take turns with the other tenants in keeping the hallway and stairs clean such proof of an assumption by ...