Opinion
November 3, 1911.
Theodore H. Lord, for the appellant.
Charles Goldzier [ Moses H. Grossman with him on the brief], for the respondent.
On the 29th day of September, 1908, the plaintiff and her husband were lessees of an apartment on the third floor of a five-story tenement house, having five apartments on each floor, at No. 940 East One Hundred and Sixty-fifth street, borough of the Bronx, New York, owned by the defendant; and at about seven minutes after six o'clock in the evening of that day, while starting from the upper landing to pass down the first flight of stairs, she slipped on a grape skin which was on the landing near the head of the stairs, and fell and sustained injuries, to recover for which this action was brought.
The negligence charged in the complaint is failure to light the public hall between sunset and sunrise, and to keep the stairs clean and free from accumulation of dirt, filth, garbage and other matter, as required by the provisions of chapter 334 of the Laws of 1901, known as the Tenement House Act.
The accident occurred after sunset, and the public hall was not lighted. The court properly submitted to the jury the questions with respect to the liability of the defendant for his failure to comply with the requirements of the law in that regard.
With respect to the liability of the defendant for the accident, if due to the presence of the grape skin on the landing near the head of the stairs, the court instructed the jury that the landlord was not expected to have some one in the house the entire time watching for any slight object that might drop on the stairway, but was expected to use such care as an ordinarily prudent person having charge of such a building would use, and that it was his duty to use reasonable care in inspecting the public stairs and floors, with a view to removing anything that might be deposited there, which would endanger the safety of people using the stairs.
The defendant had a janitress in charge of the building, whose duty it was to light the lights and keep the public stairs and floors clean as required by law. The janitress was called as a witness by the plaintiff. She testified that shortly after two o'clock in the afternoon of the day of the accident, on looking out through the window of her kitchen, she "saw two little boys eating grapes and throwing the skins down coming down on the back stairs leading into the air shaft," and that she thought that "the children may have done the same thing down the stairs," and so a few minutes afterwards she went up to the fourth floor and found and picked up grape skins all the way; that she picked up all that she saw, and that she intended to get a broom and sweep down the stairs to be sure of getting all the grape skins, but that she was interrupted by one of the tenants and she then forgot to do so; and that she swept down the stairs at the place where the accident occurred every morning. The plaintiff testified that after falling she looked and saw a squashed grape skin on the landing near the head of the stairs, and it is claimed that she slipped on that grape skin. A girl fourteen years of age, a daughter of one of the tenants of this building, called by the plaintiff, testified that "after three o'clock, * * * about three o'clock" in the afternoon of the day of the accident, she and a girl friend were coming down the stairs, and that her girl friend was eating grapes and "throwing down the skins."
The court left it to the jury to determine whether or not the janitress picked up all the grape skins that were on the stairs and landing at the time to which her testimony relates, and also to determine whether or not, if plaintiff slipped on a grape skin dropped on the landing after the time the janitress picked up the grape skins, the defendant or his servants knew or should have known that the grape skin was there and was dangerous to a person passing up or down the stairs, and permitted the jury to predicate a verdict upon the negligence of the defendant with respect to the grape skin, regardless of the question of negligence with respect to lighting the hall. At the close of the charge counsel for the defendant requested the court to instruct the jury as follows: "Negligence in this case cannot be predicated upon the presence of the grape skin on the stairway, on which it is alleged Mrs. Maringer slipped." This request was denied, and an exception was duly taken, and counsel for the defendant also excepted to the charge "as modified" with respect to his requests, evidently intending thereby to except to the charge on this subject, for it would seem that the court had his requests before charging the jury.
We are of opinion that the court erred in permitting the jury to find the defendant guilty of negligence with respect to the presence of the grape skin on the stairs; and since in the form in which the verdict was rendered it cannot be said upon which theory the jury determined the issues the defendant is entitled to a new trial. If it appeared or could be determined from the evidence that the accident was due to a grape skin dropped on the landing by the girl friend of the daughter of a tenant at about or after three o'clock in the afternoon, we are of opinion that the jury should not have been permitted to hold the defendant liable on the theory of constructive notice. There was no evidence of actual notice to the defendant or his janitress with respect to the grape skins thrown upon the floor and stairs after three o'clock, and it would be unreasonable to hold the defendant liable for failing to inspect the stairs and landing between that hour and the time of the accident, for that would impose too onerous a duty on the part of owners of tenement houses. The stairs had been swept that morning, and in the absence of notice that they had been obstructed or rendered dangerous by tenants or third parties in the meantime, there was no duty on the part of the defendant to further inspect between the time the janitress picked up the grape skins and the time of the accident. If, on the other hand, it appeared, or could be determined with any degree of certainty from the evidence, that the plaintiff slipped on a grape skin that was on the stairs when the janitress picked up grape skins, and that the janitress was negligent in not picking them all up, then the defendant might be held liable on that theory; but on the record before us on this appeal there is not even a foundation for a reasonable guess as to whether the grape skin on which the plaintiff slipped is one that was on the landing or stairs when the janitress picked up all she found, or whether it was one deposited there later.
We are, therefore, of opinion that the defendant was entitled to have the jury instructed as requested in the charge, which was refused.
It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
INGRAHAM, P.J., CLARKE and SCOTT, JJ., concurred; DOWLING, J., dissented.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.