On appeal from a judgment of the District Court of the city of Passaic.
For the appellant, Irving L. Werksman.
For the respondent, Aaron Heller.
Before Justices Bodine and Heher.
The opinion of the court was delivered by
HEHER, J. On November 26th, 1935, as the plaintiff, a pedestrian, was crossing cellars doors laid in the sidewalk abutting a building situate on Lexington avenue, in the city of Passaic, owned by the defendant, F. & F. Realty Company (hereinafter referred to as the landlord), and tenanted by its co-defendant, McGuire Art Shop (to be referred to as the tenant), one of the doors was without warning violently thrust upward through force exerted underneath by a servant of the tenant, whose less vigorous efforts had been unavailing, and plaintiff was thrown to the sidewalk, thereby suffering the injuries made the basis of this action.
The District Court judge, sitting without a jury, found for the plaintiff against both defendants, and the landlord appeals. It is said there was error in the denials of the motions to nonsuit and direct a verdict in its favor on the asserted ground of an utter lack of evidence of an actionable breach of a duty owing by it to the plaintiff under the circumstances.
The point is well made. The gravamen of the pleaded cause of action and the trial theory were that, inasmuch as
the cellar was also rented to the tenant, and there were no other means of ingress and egress, the landlord was guilty of maintaining a nuisance at the time of the letting, and throughout the term to the day of the mishap, in that the cellar doors were not equipped with "a proper locking device or protective guard," to safeguard pedestrians when the doors were raised from underneath. More specifically, it is maintained that it was the landlord's duty to equip the doors with a cross bar or brace designed to hold them, while so used, in a perpendicular position, or an electric hoist automatically providing a guard to pedestrians, and that this lack constituted a defect essentially structural in character.
The entire store premises were rented to the tenant exclusively, and the tenant undertook to make repairs. Although the lease does not specify the cellar as part of the demise, it seems to be conceded that it was included in the letting. No measure of control was reserved by the landlord, except the mere privilege of entry for the making of repairs in the event of the tenant's default; and no other tenant of the building had access to the cellar.
The cellar doors were of steel; and there was no evidence of a structural defect or faulty construction, unless the failure to use one of the mentioned appliances brings them within one of these categories.
In these circumstances, the only valid basis for imposing liability on the landlord is that he created and continued a public nuisance during the term, i.e., a condition which menaced the safety of pedestrians on the highway. Durant v. Palmer, 29 N.J.L. 544; Houston v. Traphagen, 47 Id. 23; Weller v. McCormick, 52 Id. 470; Sutphen v. Hedden, 67 Id. 324; Meyers v. Birch, 59 Id. 238; Handlon v. ...