Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
The essential question in this action is the liability of a lessee in possession of premises for his failure to remedy a defective stairway condition, which failure caused injuries to a neighbor's child of tender years who came upon the property on its own initiative to call the lessee's child to play.
The Knox and Goodman families were next door neighbors, and their children playmates. The defendant, Julian Goodman, was the lessee under a written lease for a term of three years, of the entire premises at 2625 Westfield
Avenue in the City of Camden, a two-story building. He operated a retail shoe store on the first floor and lived with his wife and daughter, Susan, about seven years of age, in an apartment over the store. The Knox family, consisting of husband, wife and two small girls, Helen Marie, about three years of age, and Mary Jane, about seven, occupied the adjoining second-floor apartment at 2627 Westfield Avenue, attached to and physically part of the same structure which includes 2625 Westfield Avenue. In the rear of the attached building is a yard, from which entrance to the Knox and Goodman apartments is provided by an open wooden stairway which has 13 steps to a landing, and from there, to the right, a flight of steps leading to defendant's apartment and, to the left, a flight of steps to plaintiff's apartment. This stairway provides the only means of access to plaintiff's apartment, but defendant's living quarters can also be reached from a stairway in the front of the building.
Mary Jane Knox and Susan Goodman often played together in the back yard and, on occasion, in the Goodman apartment, although the testimony as to the number of these occasions in the apartment is conflicting. At times they were joined by the younger Knox child, Helen, the plaintiff, who, according to Mary Jane's testimony, had on different occasions used both the front and rear stairways to reach the Goodman apartment. On July 15, 1955, while the Knox children were playing in the yard, the three-year-old Helen ascended the back stairway to the Goodman apartment to ask Susan to come out to play with them. Receiving no response, she began to retrace her steps, and on the third step above the landing turned her ankle and fell under the handrail at the edge of the stairway to the ground about 20 feet below, sustaining the injuries for which recovery is sought by this action.
The testimony discloses that the stairway had been built for the owner of the property some years before defendant entered into possession, and that defendant has made no changes. Thus, it was in the same condition on the date
of the accident as it had been when he took possession. Expert witnesses on behalf of plaintiff testified that the stairway was of substandard construction in that there were no balustrades between the steps and handrail, leaving an opening of about 31 inches, nor was there an intermediate handrail between the steps and the existing handrail. The steps were considered so unsafe by the defendant himself that he forbade his daughter to use them. He candidly testified on cross-examination that "My daughter Susan is forbidden to use those stairs" because the back stairs were "very high"; about "twenty-five or thirty feet off the ground." He further testified as follows:
"Q. Do you feel those steps were a safe place for your daughter to go in and out of the apartment? * * *
A. Well, I considered those steps not safe for my daughter to go in and out of the apartment, as we didn't let her go in and out. * * *
Q. Do you think they would be safe for any other child?
A. If they weren't safe for my daughter they weren't safe ...