On appeal from the Supreme Court (Middlesex county).
For the plaintiff-appellant, David I. Stepacoff.
For the defendant-respondent, Autenrieth & Wortendyke.
The opinion of the court was delivered by
HAGUE, J. The plaintiff appeals from a judgment of nonsuit in the Supreme Court. The suit was for damages resulting from personal injuries which the plaintiff sustained when,
on November 6th, 1938, the plaintiff, on leaving the apartment house where he had resided for four and a half years, fell as he stepped from the top to the next step of the five-step brick staircase leading from the street level to the apartment house entrance.
The complaint in two counts charges, first, negligence in the maintenance of the staircase and, secondly, nuisance in permitting the stairway to remain in a "dangerous and defective condition."
Two grounds of appeal were argued; first, that the court erred in concluding "that there was no proof that the condition of the stairway was the proximate cause of the happening of the accident," and therefore should not have ordered a nonsuit; and, second, that it was error to strike out the testimony of Mr. Ricci who said that the "variations in the stairway were due to improper construction." We find no merit in either ground of appeal.
Plaintiff's testimony concerning the happening of the accident was as follows: "I crossed the platform, walked over the platform, and when I stepped down the first step below the platform my foot slid from under me. My feet went up in the air and I came down at the landing there on my back." There is no proof whatever in the case that there was any lack of maintenance of the stairway or that a state of disrepair in any degree existed. Mr. Ricci, called as an expert in order to prove improper construction, testified that the treads of the steps which should slope a quarter of an inch to accommodate the running off of rain water were not uniform; that the slope of the bottom step from rear to front amounted to a half inch; the second an eighth of an inch; the third a quarter of an inch; the next seven-eighths of an inch, and the top five-eighths of an inch, the depth of the tread in each case being not less than twelve inches. Assuming that a standard of construction was proved, nonetheless there is nothing whatever to show that the variations in slope caused the accident.
The appellant, in his argument that there was evidence to go to the jury, relies on the case of Millman v. U.S. Mortgage and Title Guaranty Co., 121 N.J.L. 28. That case,
however, is factually different from this because there there was competent evidence of a negligent state of disrepair in the staircase of an apartment house. Likewise the case of Martin v. City of Asbury Park, 111 Id. 364, is no authority for the plaintiff's proposition. There the staircase maintained by the city of Asbury Park, in connection with its bathing facilities, "were wet, slippery and slimy," as was the handrail of the stairway. Reliance is also placed upon the case of Leech v. H. & M. Railway Co., 113 Id. 366; affirmed, 115 Id. 114. But in that ...