Opinion
Argued October 4th, 1938 —
Decided January 30, 1939.
1. A tenant is liable for injuries sustained by a third person because of a defectively constructed sidewalk, and the rule which frees the owner and occupant of liability, because of wear and tear, has no application where a sidewalk was badly constructed and continued.
2. Defendant was the occupant of a store property under a long term lease, and the sidewalk abutting the same on the street in the rear consisted of a concrete pavement nine feet wide from the curb, leaving a space nine feet ten inches wide between it and the fence erected on the building line, which space was partially filled in with cinders by a predecessor in title, its level being three to four inches below that of the rest of the sidewalk. Plaintiff, while walking along the sidewalk after a light fall of snow slipped in the declivity and was injured. There was evidence that shortly after the accident defendant obtained a permit to make repairs and did concrete the entire walk. Held, that the jury might well find from these proofs, as they did, that defendant had control of the repair of the sidewalk, and that it continued the nuisance when it could have altered the situation, thereby making it liable for plaintiff's injuries.
On appeal from the Hudson County Court of Common Pleas.
Before BROGAN, CHIEF JUSTICE, and Justices BODINE and HEHER.
For the defendant-appellant, Carey Lane ( Robert Carey, Harry Lane and David Pindar).
For the plaintiff-respondent, Collins Corbin ( Edward A. Markley, James B. Emory and Fred A. Hauser).
The defendant appeals from a judgment in favor of the plaintiff by reason of personal injuries suffered in the early morning of February 10th, 1935, because of a fall occasioned by alleged faulty construction of a sidewalk abutting premises leased by the defendant in Hoboken, New Jersey. The defendant occupies a store building on Washington street. Bloomfield street, where the accident occurred, is in the rear. The houses formerly standing on this street in the rear of the store premises were taken down some years ago. A fence of iron and wire was erected on the building line. A concrete driveway of the width of eighteen feet ten inches leads into the yard. A sidewalk nine feet wide from the curb was also constructed at sometime. A space nine feet ten inches wide between the sidewalk and the fence was partially filled with cinders by a predecessor in title. The level of this space was from three to four inches below the level of the rest of the sidewalk. Plaintiff testified that on the morning of the accident, there being a light fall of snow, his foot slipped into the declivity due to inequalities of levels and materials and injuries were sustained.
Appellant argues that the trial judge erred in denying motions for nonsuits and in refusing to direct a verdict in favor of the defendant. We think not. It was open to the jury to find that the construction was faulty and dangerous. "A tenant is liable for injuries sustained by a third person because of a defectively constructed sidewalk." Glass v. American Stores Co., Inc., 110 N.J.L. 152. It was there held that the rule which frees the owner and occupant of liability, because of wear and tear, is not applicable to a situation where a sidewalk was badly constructed and continued.
Appellant contends that a tenant for years is not liable for a continuance of a nuisance in a sidewalk placed therein by the landlord. Krieg v. Timken (areaway), 102 N.J.L. 307; McLaughlin v. Hackensack Food Center, Inc. (valve box for water line), 119 Id. 299. Certainly that is so where there has been no change in the demised premises during the tenant's occupancy and he has no authority to make alterations of the premises and abutments.
In Durant v. Palmer, 29 N.J.L. 544, both the owner and occupant were regarded as liable for the continuance of a nuisance in the sidewalk. See, also, McKeown v. King, 99 N.J.L. 251, where a tenant was liable for permitting a drain cover to become out of repair.
In the present case the lease was for twenty-one years and the defendant must have had control of the repair of the sidewalk, because shortly after the accident it obtained a permit from the city to make repairs, and did concrete the entire walk. The jury might well find on these proofs, as they did, that the defendant continued the nuisance when it could have altered the situation. Garvey v. Public Service Transport, 115 N.J.L. 280 . Of course, there would have been no obligation to abate the nuisance if by so doing liability to the landlord would have been incurred. Krieg v. Timken, supra. The lease was offered in evidence, but an objection thereto by the defendant was sustained. We cannot tell what provision it contained, but it is not to be assumed that it contained provisions negativing the obligation apparent from the testimony, as to the subsequent repair, which was received for the limited purpose of showing obligation with respect thereto.
We have examined the other points argued by the appellant and think they are without merit.
The judgment is affirmed, with costs.