March Term, 1901.
Charles L. Woody, for the appellant.
J. Stewart Boss, for the respondent.
At the time of the accident hereinafter referred to the plaintiff with her husband occupied the ground floor of a tenement house on President street in the borough of Brooklyn. Two other families lived in the house. There was an entrance for all the tenants to the rear yard through the cellar and up into the yard, which could have been used by the plaintiff inasmuch as it was used by the other tenants. At the rear of the plaintiff's flat was a window opening into the yard, the sill being about two feet above the surface of the yard. There was also, at this window and opening into the yard, an iron gate which swung on hinges and was fastened with an iron screw and bolt. Under the window and two feet lower than the window sill was an area opening into the cellar and about five feet deep, its mouth being thirty-two by twenty-two inches in size and covered with a wooden slat grating thirty-two by twenty-four inches in size. This cover rested on the sides and rear of the area but had no support next the house. It had no cleats or other appliances to hold it in place or to prevent its slipping off the edges and into the area. That such a construction was very dangerous to persons passing over it is apparent.
The plaintiff in May, 1898, hired the flat from the janitor, the owner being a non-resident, and was accustomed to pay him the rent. Plaintiff's husband testified that at the time of the hiring he asked the janitor "whether that gate was for persons to use when they hung out clothes, he said yes, every one had always used it since he had been there." Plaintiff testified that he showed her out into the kitchen and told her, "This is the way to go out in the yard, to use it for your washing and having your children in * * * This is the place to go out to hang your clothes up; this gate as well as your door; it is intended for the tenants who live on the first floor to go out in the yard."
This evidence was abundantly sufficient to show that the defendant through the janitor, his agent for the hiring of the premises, authorized the plaintiff's use of the window as a means of access to the yard.
In September the plaintiff asked the janitor to "fix the grating, because I did not think it was secure to go through the window, and he said he would do so, and he fixed it; jumped on it; said it was all right; that there was no danger whatever. This was two months before the accident. After that we used it always" to go into the yard.
About ten o'clock on the night of the accident in question, the plaintiff had gone through the window to hang out clothes in the yard. Upon her return and while stepping upon the grating, it gave way or tilted into the hole, or area, and she was thrown through the window, breaking the glass and receiving injuries.
At the close of the plaintiff's evidence, the court dismissed the complaint, and this appeal results.
It does not appear from the evidence that the plaintiff was guilty of contributory negligence as matter of law. In Palmer v. Dearing ( 93 N.Y. 7, 10, 11) the court, RUGER, Ch. J., writing, said: "While previous knowledge by a party injured of a dangerous situation, or impending danger, from which a person of ordinary intelligence and prudence might reasonably apprehend injury generally imposes upon him the duty of exercising greater care and caution in approaching it, yet the degree of care which should be required of such a person has uniformly been held in this State to be a question of fact to be determined by the jury. ( Bassett v. Fish, 75 N.Y. 304; Weed v. Village of Ballston Spa, 76 id. 329; Niven v. City of Rochester, Id. 619; Lanigan v. N.Y. Gas Light Co., 71 id. 29.) * * * It would be an extremely harsh rule which should require the plaintiff, who was called so often to pass this place, to have kept her mind invariably fixed upon its character and to make her responsible for an omission to exercise incessant vigilance in passing over it. At all events she could hardly, as a matter of law, be chargeable with negligence in descending this stairway at a time when she had some reason to suppose, from the assurances of the defendant, that the defect had been repaired and the danger removed."
So, also, there was evidence to raise a question of fact as to the negligence of the defendant. In Dollard v. Roberts ( 130 N.Y. 269), where the plaintiff received an injury by reason of the unsatisfactory condition of the hallway, the court said (p. 273): "Their right of passage through it was necessary to the availability for occupancy of the apartments rented by them. It was provided for their use in passing to and from the apartments demised to them, of which it constituted no part. It was, therefore, subject to their right of passage in it, under the control of the defendant, who was the owner and their landlord. And upon him was the duty of exercising reasonable care in keeping the hallway in suitable repair and condition for the use in safety by his tenants of apartments on the floors above it. ( Donohue v. Kendall, 18 J. S. 386; 98 N.Y. 635; Palmer v. Dearing, 93 id. 7; Looney v. McLean, 129 Mass. 33; Lindsay v. Leighton, 150 id. 285; Peil v. Reinhart, 127 N.Y. 381.)"
In Rouillon v. Wilson ( 29 App. Div. 307) it is stated that when the attention of the landlord has been called to the rotten and insecure condition of a portion of a platform on the roof of his building, used by the tenants with his permission, he was bound to ascertain the condition of the entire platform. In the present litigation the attention of the landlord was called to the unsafe and insecure condition of the grating, and he was bound to put it into a reasonably safe condition. Whether or not he did so was, upon the evidence, a question for the jury. On both questions, therefore, it was not proper for the court to find, as matter of law, that the plaintiff was guilty of contributory negligence or that the defendant was not negligent; and it follows that the judgment should be reversed.
All concurred, except HIRSCHBERG and JENKS, JJ., dissenting.
Judgment reversed and new trial granted, costs to abide the event.