On appeal from the Union County Circuit Court.
For the appellant, Hueston & Frank (Thomas F. Hueston, of counsel).
For the appellee, Isidore Zuckerman (Gerald F. Foley, of counsel).
The opinion of the court was delivered by
OLIPHANT, J. This appeal is from a judgment in favor of the plaintiff entered in the Union County Circuit Court. It is an action in tort for personal injuries sustained by him as a result of falling down a cellar stairway, the doors covering it being open at the time, and for which no lock was provided. The building owned by the defendant was a two story corner building, the first floor of which consisted of five stores and the second floor of six apartments. The cellar of the building had a dividing partition, at or near its center, separating the front part from the rear. The front part was for the use of the occupants of the stores, the rear for the apartment
tenants. The front of the cellar could be reached only through two openings in the sidewalk in front of the stores, the steps from which led to a corridor at the foot thereof running the whole width of the cellar. Off this corridor were located bins, one for each store tenant.
The case was submitted to the jury on two theories; first, whether or not the defendant was negligent in failing to provide a lock for the cellar doors, thereby creating a structural defect, a nuisance, which was the proximate cause of plaintiff's injuries, and second, whether or not the defendant through its servant, Margaret Mulligan, exercised reasonable care when she failed to close the cellar doors upon finding them open some time before the accident, and if there was a lack of such care, whether it was the proximate cause of the accident. Of course, it is impossible to determine upon which the jury based its verdict.
We need not be presently concerned with the questions presented by the first theory.
Margaret Mulligan and her husband were sort of cosuperintendents of the building. Mrs. Mulligan had charge of cleaning the halls, the second floor and the hallway leading down therefrom to the first floor. She had nothing to do with the stores or the cellar underneath them. Her husband took care of the cellar in the rear of the building, having nothing to do with the front part under the stores.
The learned trial judge charged the jury as follows:
"There is evidence that Mrs. Mulligan the agent, servant or employee of the Prudential Insurance Company observed that the doors were open approximately three hours before the accident occurred and that she failed to close the doors. If you find that this occurred you may conclude that she was guilty of negligence for which her employer is liable and if you find further that such negligence was the ...