On appeal from the District Court. Appellant, defendant below, appeals from a judgment, based upon jury verdicts, of $150 in favor of the infant plaintiff, and of $50 in favor of his father.
For the appellant, Collins & Corbin (Edward A. Markley and John F. Leonard, of counsel).
For the appellees, Cohen & Abramson (Morris L. Stern, of counsel).
Before Justices Trenchard, Parker and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This is an action in tort. The question we are to decide is whether the trial judge erred, as it is claimed he did, in denying defendant's motions to nonsuit and to direct a verdict in its favor. We think so.
Defendant leased, in writing, the corner store of its building located at the northeast corner of Bergenline avenue and Sixteenth street, West New York, New Jersey, together with a space in the cellar underneath the store, to Irving and Harold Waldstein for the purpose of conducting a retail clothing and men's furnishing store. The cellar space is used for storage of supplies, &c. There are three separate stairways to the cellar. One is located on the sidewalk in front of the store, one in the rear of the store, and one fronting Sixteenth street.
The infant plaintiff (seventeen years of age) was employed by defendant's tenants as a stock clerk. While so employed, on July 15th, 1937, he was sent to the cellar to get some wrapping paper. As he was going down the steps on the stairway fronting Sixteenth street, his "heel caught" and he "tripped" on a "broken step," the fifth from the bottom of the stairway, and he fell down the rest of the stairs sustaining the injuries for which he and his father sought damages.
Generally stated, the plaintiffs' claim for damages is predicated upon the premise that the stairway in question is a common stairway under the control of the defendant owner, who failed to keep it in repair.
The proofs disclose, inter alia, that the lease to the tenants is silent as to which of the three entrances to the cellar the tenants and their employes were to use; that plaintiff used the particular stairway in pursuance of permission granted by the superintendent of the building to the tenants; that many others, including defendant's servants, used the same stairway; that the defective condition of the stairway existed for a
period of about four months before the accident; and that defendant knew or should have known of the existence thereof and failed to correct it.
Defendant argues here, as it did below, that the trial judge should have granted its motions to nonsuit and to direct a verdict in its favor upon the grounds that there was no proof of negligence; that the only duty on its part was to refrain from willful misconduct; and that the ...