On appeal from the District Court of the First Judicial District of the county of Essex.
For the appellant, Joseph C. Paul.
For the respondents, Sidney Finkel (A. Howard Finkle, of counsel).
Before Justices Trenchard, Heher and Perskie.
The opinion of the court was delivered by
TRENCHARD, J. The defendant below appeals from a judgement of the District Court rendered by the judge, sitting without a jury, in favor of the plaintiffs.
The agreed state of the case discloses the following matters of fact:
The plaintiff Margaret Polizzano was a tenant in the defendant's sixteen-family apartment house, occupying an apartment on the ground floor in which the windows at the rear were close to the ground. At the rear of the building where such windows opened, there was a yard, enclosed by a
fence, and which yard was reserved by the defendant for the common use of the tenants, and which the tenants and their children used. In September, 1933, desiring to clean her windows, it became necessary for the plaintiff to remove shrubbery and weeds which were growing at or near the windows. This she did with her hands, not knowing that the weeds were poison ivy. As a result, she became infected from the poison ivy, which spread over her body, causing her to be confined in bed for three weeks. She suffered from the infection, received the attention of a physician and required medicines. She recovered $225 damages, and the plaintiff Nicholas Polizzano, her husband, recovered $50 on account of medical expenses consequently paid by him.
The state of the case further shows that another tenant in the apartment house testified that in June, 1933, she informed Mrs. Stokes, the superintendent of the premises (who was admittedly defendant's agent), that there was poison ivy in the yard and that thereafter it was clipped with a pair of shears but it grew up again. It further shows that the superintendent admitted at the trial that in June, 1933, she was told by one of the tenants of the existence of the poison ivy in the yard; that the superintendent informed the defendant and was supplied with a pair of shears and clipped the poison ivy, but that she had made no other or further effort or attempt to cut it or root it out
At the conclusion of the trial the defendant moved for judgment (which motion was denied), and now argues that it, the defendant, owed to plaintiff no duty to use reasonable care and skill to make its premises reasonably fit and safe for the use intended.
On the other hand the plaintiff contends that the defendant was charged with the duty to use reasonable care to keep that part of the yard of the premises which it reserved and retained in its possession for the use in common of its different tenants, in a safe condition and free from any nuisance or danger that might result in injury to the ...