For reversal -- Chief Justice Vanderbilt, and Justices Wachenfeld, Burling and Jacobs. For affirmance -- Justice Heher. The opinion of the court was given by Jacobs, J.
In July 1954 the plaintiff Emeline Taylor brought an action in the Superior Court against the New Jersey Highway Authority to recover damages for injuries suffered when she fell on November 7, 1953 at premises located at 276 Main Street, East Orange. At the close of her case the Law Division entered judgment of dismissal and we certified her ensuing appeal while it was pending in the Appellate Division.
The premises consisted of a multi-family dwelling house which until August 5, 1953 was in the exclusive ownership of Anna Jackson, There were at least four tenants who occupied separate apartments and their only access from the street was via an outside common stairway which was under the control of Anna Jackson as owner and landlord. One of the tenants occupying an upper apartment was George Henry Bell whom the plaintiff was visiting on the day of her accident. On August 5, 1953 the defendant, which was engaged in the construction of the Garden State Parkway, filed its condemnation complaint in the Law Division against Anna Jackson seeking to acquire a fee simple absolute in the premises which were properly described by metes and bounds. The order to show cause which was issued upon the filing of the complaint was made returnable on October 16, 1953. However, long before the return date the defendant filed a declaration of taking under N.J.S.A. 27:12 B -1, et seq. -- the declaration was received in the clerk's office on August 12, 1953. It set forth that the estimated just compensation for the premises being condemned had been fixed at $42,000 by resolution of the New Jersey Highway Authority; that in compliance with the statute the aforesaid sum had been deposited with the Clerk of the Superior Court; and that by the provisions of the statute the Authority "does hereby, upon the filing of this Declaration, take possession of all of said land, premises and property." On September 11, 1953 an order was entered directing that the aforesaid sum of $42,000 on deposit be paid forthwith to Anna Jackson; this order bore the consent of the Authority,
and on September 18, 1953 the $42,000 (less the clerk's statutory fees) was actually paid to Anna Jackson.
After the Authority filed its declaration of taking the tenants, including Mr. Bell, continued the occupancies of their respective apartments without change. Mr. Bell testified that he was a tenant at the premises during most of November 1953 and prior thereto and that he had paid his monthly rentals, although the record is silent as to whom the rent was actually paid. On November 6, 1953 the Authority applied for and obtained an order to show cause returnable November 12, 1953 why an accompanying petition, seeking immediate surrender of the premises to the Authority, should not be granted. The order to show cause was sent to Mr. Bell by registered mail on November 7, 1953. On November 12, 1953 the Law Division entered an order which provided that unless the premises were surrendered by November 19, 1953 the Sheriff of Essex County should oust the persons in possession. Mr. Bell vacated his apartment on November 19; in the meantime, however, the plaintiff's accident had occurred.
The plaintiff was at Mr. Bell's apartment during the evening of November 6, 1953 and slept there overnight because of inclement weather. She testified on direct examination that it had stopped snowing shortly after 11 P.M.; during cross-examination she testified that when she looked out the window "a little after 11 o'clock it didn't seem to be snowing" -- "if it was snowing, I wouldn't call it snowing much." When she left the apartment shortly after 8 A.M. on November 7, 1953 she started to descend the common stairway, slipped on the third or fourth step, and suffered personal injuries. She testified that the stairway was exposed to the elements and that there was snow and ice on the steps. An expert testified that the steps were not properly constructed in that their forward pitch was greater than the quarter of an inch per foot which is allowed in standard construction. He also testified that the stairs should have been level except for the slight forward pitch but that he found a horizontal pitch of two or three inches.
In February 1954 the plaintiff instituted an action against Anna Jackson in the Essex County Court. Although this action was referred to by counsel during oral argument of the appeal in the instant matter it was not mentioned in the briefs or in the appendix. We take judicial notice of it (In re Breckwoldt, 22 N.J. 271 (1956)), and have referred to the original file in the County Court which discloses that on September 24, 1954 Anna Jackson served notice of motion for summary judgment and verified that after August 5, 1953 she was not in possession or control of the premises and did not exercise any control over them; her motion was granted without opposition and on October 8, 1954 the County Court ordered that judgment be entered in her favor.
In the case now before us the Authority contends that it did not have ownership, possession or control of the premises on the date of the accident (November 7, 1953) and that consequently it then owed no duty of care whatever to Mr. Bell or his invited guest; presumably its position is that ownership, possession and control of the premises continued in Anna Jackson at least until physical possession was taken by the Authority on or after November 19, 1953. At the end of the plaintiff's case she was entitled to the benefit of all of the favorable inferences which might reasonably be drawn from the testimony which she had presented. O'Donnell v. Asplundh Tree Expert Co., 13 N.J. 319, 328 (1953); Dobrow v. Hertz, 125 N.J.L. 347, 348 (E. & A. 1940); Boyle v. Baldowski, 117 N.J.L. 320 (Sup. Ct. 1936). We believe that there was enough in the record to support a finding that prior to November 7, 1953 the Authority had taken possession in legal contemplation and had actual control of the premises, particularly its common stairway.
The statute (N.J.S.A. 27:12 B -7) provides that upon or after the filing of a condemnation complaint the Authority may file a declaration that possession of the premises "is thereby being taken"; the declaration must set forth, inter alia, the estimated just compensation (and the fact that a trust fund has been established as provided in the statute)
and must be accompanied by a deposit of the estimated just compensation. This deposit may be ordered to be paid immediately to the interested party or parties, and in the instant matter it was in fact paid to the owner well in advance of the accident. After it files its declaration of taking and makes its deposit the Authority is "entitled to the exclusive possession" of the premises "and may forthwith enter and take possession" thereof. In the light of the foregoing statutory provisions and the actual circumstances presented, the Authority rather than Anna Jackson may realistically be said to have had legal possession and actual control of the common stairway on the date the accident occurred. Anna Jackson, who had already received the estimated just compensation, was in no position to oust the tenants, or to enter the premises to take necessary precautions, or to care for the common stairway while it still remained in use; indeed it would appear that the only one who was then in any effective position to do so was the Authority itself. See Rizzi v. Ross, 117 N.J.L. 362, 365 (E. & A. 1937): "whether the required repairs were slight or substantial, the ultimate liability must lie somewhere." Cf. McQuillan v. Clark Thread Co., 12 N.J. Misc. 409 (Sup. Ct. 1934); James, "Tort Risks of Land Ownership: How Affected by Lease or Sale," 28 Conn. B.J. 127, 143 (1954); Prosser, Torts (2 d ed. 1955), 463.
The statute sheds little light as to when the strict legal title to the premises actually passed from Anna Jackson to the Authority. Cf. Delancey & Stockton Corp. v. Reliable Imp. Co., 134 N.J. Eq. 71, 75 (E. & A. 1943); In re Essex County Park Commission, 80 N.J. Eq. 1, 7 (Ch. 1912), affirmed sub nom., Bowers v. Town of Bloomfield, 81 N.J. Eq. 163, 207 (E. & A. 1913). If it did not pass until the final award was formally rendered and paid it may perhaps be related back to the declaration of taking. See Milmar Estate v. Borough of Fort Lee, 36 N.J. Super. 241 (App. Div. 1955). However, we need not pursue the matter for, without regard thereto, legal possession and control by the landlord, or one standing in similar position, will determine
the responsibility to its tenants and their guests, or those standing in similar position, for the care of a common stairway. See Roth v. Protos, 120 N.J.L. 502, 504 (Sup. Ct. 1938); Weinstein v. Shapiro, 131 N.J.L. 77, 80 (Sup. Ct. 1943), affirmed 132 N.J.L. 417 (E. & A. 1945). Cf. Schwartz v. Federal Deposit Insurance Corp., 127 N.J.L. 556, 557 (E. & A. 1942). In the Roth case Justice Perskie aptly said:
"Defendant had control and possession of the stairway in question. Entirely apart from any contractual obligation, this fact imposed upon her the duty of exercising reasonable care to maintain the stairway reasonably fit for use by occupants of the premises and by others having lawful occasion to be present. Gillvon v. Reilly, 50 N.J.L. 26, 11 A. 481; Gleason v. Boehm, 58 N.J.L. 475, 34 A. 886; La Brasca v. Hinchman, 81 N.J.L. 367, 79 A. 885; Perry v. Levy, 87 N.J.L. 670, 94 A. 569; Hahner v. Bender, 101 ...