On appeal from the Supreme Court, whose opinion is reported in 122 N.J.L. 572.
For the plaintiff-appellant, David Roskein (Harry Cohn, of counsel).
For the defendant-respondent, Reginald V. Spell (Wilbur A. Stevens, of counsel).
The opinion of the court was delivered by
TRENCHARD, J. This is the appeal of the plaintiff below from a judgment of the Supreme Court, where was affirmed
a judgment of the Essex County Circuit Court in favor of the defendant.
The plaintiff occupied as a tenant the second floor flat of a two-family house owned by the defendant company. Access to the flat was gained by a flight of stairs leading from the first floor to a second floor hallway, and thence across such hallway, a distance of about three feet, to the doorway of the kitchen of the plaintiff's flat. This stairway was the only way by which access to or egress from the flat could be had. On the night of the accident, the plaintiff, for the purpose of obtaining some wood and coal from the cellar of the premises, left his flat through the kitchen door, crossed the hallway and began to descend the stairway leading to the first floor, and while so doing tripped over a nail protruding from one of the steps of the staircase and as a result he fell down the entire length of the staircase, receiving severe injuries for which this suit was brought. The evidence tended to show that the stairway in question had been in a bad state of repair for a considerable period of time prior to the accident and that the landlord had notice of the condition and had indeed promised to make repairs. Likewise the testimony established that following the accident repairs were made by the landlord to the stairway and steps in question, which repairs consisted, among other things, of the replacement of certain boards and re-nailing of the entire length of the stairs. At the conclusion of plaintiff's case the trial court granted the defendant's motion for a nonsuit upon the contention of the defendant that there was no proof whatsoever that the stairway in question was reserved in the possession of the landlord, and furthermore that the subsequent repairs made by the landlord constituted no evidence that the stairway in question was reserved by the landlord in its possession.
The Supreme Court sustained the nonsuit upon the theory that there was no evidence of control on the part of the landlord.
Now we are constrained to think that was erroneous because a jury question was presented in view of the evidence of subsequent repairs made by the landlord to the stairway in question.
There was uncontroverted evidence on the part of several witnesses for the plaintiff, that following the accident in question, the landlord caused repairs to be made to the stairway and stairs thereof. That evidence should have been submitted to the jury, not as evidence of negligence, but as bearing upon the question for determination as to whether or not that act showed the retention of control and possession of the stairway in the landlord. Perry v. Levy, ...