On appeal from the District Court of the city of Bayonne.
For the defendants-appellants, Joseph C. Paul.
For the plaintiffs-respondents, Samuel E. Kresch.
Before Justices Trenchard, Bodine and Heher.
The opinion of the court was delivered by
TRENCHARD, J. On February 4th, 1936, Grace Boyle, a tenant in an apartment house of the defendants, fell on the entrance steps of the house and was injured. She brought this suit to recover damages for such injury and her husband joined in the action claiming consequential damages. The District Court judge, sitting without a jury, gave judgment for the plaintiffs, and the defendants appeal.
The defendants contended at the trial, and now contend, that the motions for nonsuit and direction of a verdict should have been granted. We believe that a consideration of the legal propriety of the denial of such motions will dispose of every question argued.
Those motions were grounded upon the assertion that there was no evidence of negligence of the defendants, and that the plaintiff Grace Boyle "assumed the risk."
We think these contentions are ill-founded in fact and in law.
The plaintiffs were tenants in the defendants' apartment house where the defendants also lived. The defendants reserved control of the entrance and steps which were used in common by all of the tenants, and the defendants usually personally performed the janitorial duties in respect thereto.
The evidence was somewhat contradictory, yet there was ample evidence from which the trial judge might, and no doubt did find the following matters of fact: The entrance to the house upon which the plaintiff Grace Boyle fell, consisted of six steps, of brick construction, leading to the street. It was while walking down these steps at ten-forty-five A.M., that she fell. It had been raining, freezing and snowing during the preceding night, but the weather cleared about seven-thirty A.M., leaving the steps covered by four or five inches of soft snow underlaid with ice, the presence of the ice being unknown to Mrs. Boyle prior to her fall. The steps had not been swept or cleaned, but remained untouched until ten-forty-five A.M., when Mrs. Boyle attempted to use them and was caused to fall by reason of the snow-covered ice.
Now, the defendant owners of the apartment ...