On defendant's appeal from the District Court.
For the appellant, Carey & Lane.
For the respondent, Nathan Baker.
Before Justices Parker, Donges and Colie.
The opinion of the court was delivered by
PARKER, J. The appeal is from a judgment for plaintiff in an accident case. Defendant was the owner of a two-family house, rented to one family on the ground floor and to another family of the floor above, which was reached by a staircase leading only to that floor from a separate street door. Plaintiff was visiting the tenants of the upper floor, and on leaving had to descend the staircase. It was 11:00 P.M. and of course dark outside. The staircase, a mere flight of steps between two walls was unlighted at the time. At the top the last few steps were arranged fanwise so that the exit there was at right angles to the body of the staircase, each tread varying from full width at one end to zero at the other. There was a light fixture at the top, out of order, and one at the bottom that was working but of little or no use to show the plaintiff where she was stepping. The witness Elkin, who lived there, was assisting her to make the turn, but he was on the broad end of the treads and she on the narrow end, and she missed her footing and fell.
The theory of the suit against the defendant owner was that it had retained management of the lighting fixtures (and indeed of the repair and supervision af the stairway), to such an extent as to be under a duty of care as regards the tenants
and their visitors. The case was tried with a jury, and submitted to them over motions to nonsuit and direct a verdict for defendant. The points argued for error are rulings on evidence, denial of the motions just mentioned, and exceptions to the charge.
A fundamental question is whether there was evidence for the jury, on which defendant could be charged with a duty of care as respects the plaintiff. If the house had been in what may be called the "tenement house" class, where the owner retains control of the stairs and passageways common to two or more tenants, there would be little difficulty on this point: but in this case the situation, as claimed by the plaintiff, was that of a single tenant with his own exclusive stairway from the street. At common law that situation, without more, imposed on the landlord no duty of repairs or maintenance, that duty resting on the tenant: Heintz v. Bentley, 34 N.J. Eq. 562, 569; Naumberg v. Young, 44 N.J.L. 331; Mullen v. Rainear, 45 Id. 520; Lyon v. Buerman, 70 Id. 620. But in recent years it has been customary for landlords to make repairs, and our courts have held this evidential of retention of control and possession in the landlord. Taylor v. Majestic Building and Loan Association, 14 N.J. Mis. R. 699; Dubonowski v. Howard Savings Institution, 124 N.J.L. 368, 370. In each of those cases there was an omission to make needed repairs; and it was open to the jury to find the existence of a similar situation in the present case. There was evidence introduced on the plaintiff's case that the landlord had, on telephone call, sent its agents to make minor repairs, such as the plumbing, and the furnace. The witness Elkin, who lived in the apartment with his parents, testified that he "used to call up [the defendant] for any repairs;" and that about a week before the accident something was wrong with the light bracket at the head of the stairs, that he had called up the company's office on Bergen avenue "about the light being out of order," and that some one came to fix it, but not until two weeks after the accident; that he was present when it was fixed. But more than this, after a motion to nonsuit had been denied, a witness for defendant named Frisco testified that as an employe of defendant his duty was
to attend to repairs including lighting fixtures: that no one else was in charge of this: and that he had never received any complaint about the light, nor had anyone gone by his authority to fix it. Motion to direct a verdict for defendant was denied, and the jury were charged, and returned a verdict for plaintiff.
If the assumption by defendant of a duty to keep the light in repair was a matter of doubt when the plaintiff rested, that doubt was fully resolved by the Frisco testimony; and the remaining question of fact is whether there was evidence on which the jury could find that a request by telephone to repair the fixture had been received at the defendant's office. If so received, defendant was charged with the duty of repair with ...