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Millman v. United States Mortgage and Title Guaranty Co.

Decided: August 31, 1938.

FRED MILLMAN AND MARGARET MILLMAN, PLAINTIFFS-RESPONDENTS,
v.
UNITED STATES MORTGAGE AND TITLE GUARANTY COMPANY OF NEW JERSEY, A BODY CORPORATE, DEFENDANT-APPELLANT



On appeal from a judgment of the Essex County Circuit Court.

For the appellant, Joseph C. Paul (Harry E. Walburg and William H. D. Cox, of counsel).

For the respondents, Leonard G. Brown (Gerald T. Foley, of counsel).

Before Brogan, Chief Justice, and Justices Bodine and Heher.

Heher

The opinion of the court was delivered by

HEHER, J. This action sounds in tort. The gravamen of the complaint is negligence in the maintenance of a stairway for the common use of the tenants and occupants of a three-story apartment house in the city of Orange, possessed and controlled by defendant -- (a) "improper in design and construction for the purpose intended and to which it was dedicated," and (b) "in a condition of disrepair dangerous to the safety of persons" lawfully making use thereof.

Plaintiffs were occupants of a second floor apartment under a tenancy contract with defendant; and, on June 6th, 1935, between nine-thirty and ten o'clock in the morning, Margaret Millman suffered personal injuries in consequence of a fall while descending the stairway -- the proximate result, so it is said, of defendant's negligence in the particulars mentioned. She testified that her heel caught on the metal nosing of the fifth step, and she thereby lost her footing and fell. Her husband testified that an examination of the step shortly after the accident disclosed "a screw about six inches from the edge of that particular molding on the step," and that "where the screw was it started to bend there and went up on an angle to almost three-quarters of an inch." Plaintiffs -- the husband sued per quod -- were given a verdict by the jury empaneled to try the issues; and defendant appeals from the consequent judgment.

First: The initial point made is that there was harmful error in the introduction from two witnesses called by plaintiffs of evidence relating to the condition of the stairway some two and a half years after the occurrence of the mishap,

when they made their first examination of the premises. We find it to be insubstantial.

The objection was rested upon the grounds that such testimony was "entirely too remote," and there was "no proof of any change." One of these witnesses, Miller, was a builder of apartment and dwelling houses; the other, Golinski, was an architect and civil engineer. They were called primarily to give expert testimony as to general trade standards in the construction of apartment house staircases, and the conformance vel non of this particular stairway construction to the accepted standard as they conceived it, and not to establish a negligent state of disrepair. While their conclusions were based in part upon the inspection thus made of the premises, they were plainly rested upon the hypothesis that such was the condition at the time of the happening of the accident adverted to. And the foundation in this particular had been laid. Fred Millman had testified -- in part on cross-examination -- that, structurally, the stairway, especially as regards the tread upon which his wife lost her footing, at the time of the examination made by these witnesses, and as late as one week before the commencement of the trial, was the same as on the day of the accident, and for a year prior thereto. There had been no structural change in the meantime.

In this connection, it is pertinent to note that the structural defect found by these witnesses was the misplacement of an end screw employed to affix the flexible brass nosing to the tread -- at a point five and three-quarters inches rather than a half inch from the end -- evidenced by the raising of that end of the nosing. The setting of the screw one-half inch from the end was essential, so these witnesses testified, "to keep the end of the nosing firmly fastened to the tread" -- the putting of the screw five and three-quarters inches from the end would cause "the nosing to spring up."

But appellant points out that the witnesses "testified specifically how far the brass nosing projected above the tread on the end;" and it is argued that this was inadmissible as showing the condition of the tread at the time the injury was ...


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