McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by McGeehan, S.j.a.d. Jayne, J.A.D. (dissenting).
Judgment against defendant 54-62 Summer Ave. Corp. and defendant Nathan Peckerman and in favor of the plaintiff was entered in the Superior Court, Law Division, upon jury verdict. Each of these defendants appeals.
At about 6:30 A.M. on September 5, 1947, while the plaintiff was standing on the sidewalk in front of 54 Summer Avenue, in Newark, a pane of glass fell out of a window on the third floor front of the premises, struck the plaintiff and injured him. The defendant 54-62 Summer Ave. Corp. was the owner of the premises and the defendant Nathan Peckerman was a tenant under lease of the portion of the third floor of the premises from which the pane of glass fell. The complaint charged the defendants with control of the window involved and with negligence in failing to perform the duty of keeping the premises in a reasonably safe condition.
There was testimony that examination of the window less than an hour after the accident disclosed that one whole pane of glass was gone from the lower section of the window and that there was no putty in the window. The tenant or one of his employees opened and closed the window each day and occasionally washed the inside. The lease provided:
"* * * And at the expiration of the said term, or the termination of this lease, the said party of the Second Part will quit and surrender the premises hereby demised, in as good a state and condition as reasonable use thereof will permit, damage by the elements excepted.
"The party of the second part shall take good care of the premises and shall at its own cost and expense paint and redecorate the interior and that the landlord shall make exterior repairs.
"In case of any damage or injury occurring to the glass in the demised premises or damage and injury to the said premises of any
kind whatsoever, said damages or injury being caused by the carelessness, negligence, or improper conduct on the part of the said party of the second part, its agents or employees, then the said party of the second part shall cause the said damage or injury to be repaired as speedily as possible at its own cost and expense. * * *"
The owner argues, first, that the court erred in denying its motion for judgment at the end of the case, because the owner owed no duty to the plaintiff as to the window involved. The owner relies upon the rule that the occupier and not the landlord is bound as between himself and the public so far to keep buildings in repair that they may be safe for the public, and such occupier is prima facie liable to third persons for damages arising from any defect. McKeown v. King , 99 N.J.L. 251 (E. & A. 1923); Ross v. Tetradis , 7 N.J. Super. 224 (App. Div. 1950).
It is the duty of the owner of a building abutting upon a public highway to maintain it in such a condition that it shall not become dangerous to the traveling public. An exception to this general rule occurs where the owner, by lease, vests a tenant with exclusive possession, thereby depriving himself of the power of entry to make repairs, in which case the owner is not liable to a passer-by if the building or a part thereof, due to a condition of disrepair arising in the course of the tenant's occupancy, fall upon and injure the passer-by. In so far as the owner reserves control of the premises to the extent necessary to make repairs, his duty to the public, in relation to such part of the property, of maintaining it in a safe condition continues. Spinelli v. Golda , 6 N.J. 68 (1950); McKeown v. King , above; Appel v. Muller , 262 N.Y. 278, 186 N.E. 785 (Ct. of App. 1933); 1 Tiffany, Real Property , (3 d ed. 1939), § 108; Restatement, Torts , §§ 377, 378; 138 A.L.R. 1078; 89 A.L.R. 480; 7 A.L.R. 204.
We agree with the court below that this owner owed a duty to the traveling public of reasonable care in the maintenance and repair of the window, because it reserved control over such part of the property by virtue of the provision of the lease concerning the making of exterior repairs and the
specific provision concerning glass. Cf. Spinelli v. Golda , above; White v. Ellison , 5 N.J. 228 (1950); Walsh v. Southwestern Bell Telephone Co. , 331 Mo. 118, 52 S.W. 2d 839 (Sup. Ct. Mo. 1932); Appel v. Muller , above; Friedl v. Lackman , 136 Ohio St. 110, 23 N.E. 2d 950 (Sup. Ct. Ohio 1939).
The owner argues, next, that the court erred in denying its motion for judgment at the end of the case because there was no proof of any negligence by the owner, and the doctrine of res ipsa loquitur did not apply because the owner did not have sole control of the pane of glass involved, citing Gildea v. Harris Fine Realty & Const. Co. , 292 N.Y.S. 55 (App. Div. 1936), and Bain v. New York Majestic Corp. , 31 N.Y.S. 2d 434 (App. Div. 1941).
In the Gildea and Bain cases, the court held: "Since there were two persons who may have been the cause of this accident, the landlord or the tenant, each of whom may have been independently negligent, res ipsa loquitur does not apply." This holding is contrary to the rule in our State set forth in Meny v. Carlson , 6 N.J. 82 (1950), and to the general rule set forth in 65 C.J.S., Negligence , § 220(8); and apparently was repudiated by the New York Court of Appeals in the later case of Schroeder v. City and County Sav. Bank , 293 N.Y. 370, 57 N.E. 2d 57 (1944). In the Schroeder case the New York Court of Appeals held that the res ipsa loquitur doctrine applied to three independent defendants who were in control of the instrumentality which caused the damage, stating: "It is not necessary for the applicability of the res ipsa loquitur doctrine that there be but a single person in control of that which caused the damage."
Aside from the fact that the absence of putty in the window was some evidence of negligent maintenance, the doctrine of res ipsa loquitur applied to this owner, since it reserved control of the part of the premises involved. The fact that no one had sole control of the instrumentality in this case, because control was shared by the owner and the tenant, does not prevent the application of the doctrine to both the owner and the tenant. "The word 'exclusive' when
used to define the nature of the control necessary to invoke the doctrine of res ipsa loquitur does not connote that such control must be several and the defendant singular and never plural." Meny v. Carlson , above; 65 C.J.S., Negligence , § 220(8). Cf. Kelly v. Laclede Real Estate and Invest Co. , 155 S.W. 2d 90, 138 A.L.R. 1065 (Sup. Ct. Mo. 1941). As Professor Prosser states it: "Furthermore, it is entirely possible that the inference of negligence may arise against each of two or more parties who share control -- as where each is under an obligation to inspect, and the defect is one which could have been discovered by such inspection." Prosser on Torts , (1941), ch. 7, § 43.
Lastly, the owner argues that the trial court erred in its charge concerning the effect of the application of the res ipsa loquitur doctrine. The court charged:
"* * * Now, since under the proof here, members of the jury, it appears that this window pane fell from its framework and struck the plaintiff, under the law an inference of negligence arises against both of these defendants.
" The presumption of negligence on the part of these defendants or the inference of negligence on the part of these defendants having come into existence here, it is incumbent upon the defendants to explain that they exercised reasonable care in the maintenance of this window. It is your duty as jurors to take into consideration all the facts disclosed by the evidence as well as the inference of negligence that I have told you has arisen against the defendants and to decide whether or not the plaintiff has sustained the burden imposed upon him of establishing by the preponderance of the evidence that one or both of these defendants were negligent, and that that negligence was the proximate cause of the accident and of his injuries." (Italics ours.)
In dealing with the doctrine of res ipsa loquitur , in respect to the situations in which it should be applied (Alston v. J.L. Prescott Co. , 10 N.J. Super. 116 (App. Div. 1950)), we commented on the diversity of opinion thereon discoverable in the English and American cases, in the textbooks and in the law review articles, and gave illustrative citations. We deal here, not with the situations in which the doctrine should be applied, but with the more troublesome question of the mechanics of its operation when it does apply. The citations
in the Alston case, mentioned above, are also enlightening on the question before us.
In our State, however, the mechanics of the operation of the rule have been stated clearly in Wildauer v. Rudnevitz , 119 N.J.L. 471 (E. & A. 1938): "In actions for negligence where the maxim res ipsa loquitur applies, the trial judge may hold that the circumstances are such as will, unexplained, permit the jury to draw the inference of negligence, but that inference is for the jury and not for the court." Professor Prosser states: "The majority of the American courts regard res ipsa loquitur as nothing more than one form of circumstantial evidence. * * * This usually means that the inference of negligence to be drawn from the circumstances is left to the jury. They are not compelled to find it. The plaintiff escapes a nonsuit, or a dismissal of his case; but no burden of introducing evidence is cast upon the defendant, in the sense of a directed verdict against him if he fails to do so -- if he introduces no evidence at all, the jury may still find in his favor." Prosser on Torts , (1941), ch. 7, § 44. In 173 A.L.R. 880, in discussing the question before us, the note commentator says:
"The question of the precise operation or consequence of the doctrine of res ipsa loquitur is made difficult by the variety of expressions by the court in the many cases in which the doctrine has been invoked. One of the outstanding problems is whether the doctrine permits or gives rise to a presumption of negligence, or merely a permissible inference thereof. Perusal of the cases on this point reveals a serious conflict, due perhaps to the somewhat loose expressions by the court in applying the doctrine or discussing its effect. But in cases where conscious effort was made to distinguish and determine the consequences of the doctrine, and particularly in cases of more recent origin, the majority of the courts favor the view that res ipsa loquitur merely warrants or justifies the drawing of an inference of negligence, and does not create a presumption of negligence so as to compel a finding thereof in the absence of explanation by the defendant."
Also see cases gathered in 173 A.L.R. 874. But see Res Ipsa Loquitur by Shain (1945), in which the author argues that a different result should be reached, based upon his analysis of a large number of English and American cases, ...