| N.J. | Nov 9, 1908
The opinion of the court was delivered by
This is an appeal from the judgment of the First District Court of Jersey City, rendered in favor of the defendant in an action brought to recover for personal injuries sustained by the plaintiff.
The case was tried by the court without a jury. The appellant has specified two points pursuant to rule 90 of this court, viz., that the finding of the court was contrary to law, and that the verdict should have been for the plaintiff. Inasmuch as the determination of the judge is made final and conclusive upon questions of fact bv section 205 of the District Court act (Pamph. L. 1898, p. 556), and appeal is given only with respect to the determination of the court in points of law (section 206), it may be doubted whether in the present case sufficient specification under the rule has been made to entitle the appeal to be heard.
The plaintiff was injured on Sunday evening about eight o’clock bv stepping into an uncovered opening in a wooden stoop or platform, leading from the sidewalk to the house owned by the defendant on Henderson street, Jersey City. The platform was used for an approach to a store in the possession of defendant’s tenants. It was about seven feet wide from the store door to the sidewalk. The hole was about one foot from the store window, and was seventeen by twenty-four inches. The hole in the platform had formerly been covered by a door leading down into a cellar beneath the building, which, however, was wet, and not used for any purpose. Some time in 1906 the cellar door was removed and the opening covered by stout slats, about one and one-half inches in thickness, leaving small apertures between the slats for ventilation. The slats were fastened down to the joists which supported the platform by brass screws. The tenants in the store, from the time of putting down the slats, had considerable trouble with mischievous boys in the neighborhood, who were accustomed wantonly to tear up the slats and leave the hole uncovered. This had been done late on Saturday night, or early on Sunday morning, prior to the accident. The store was used as a candy and cigar store by William O’Toole and his wife, tenants of the defendant, Mr. O’Toole being otherwise employed at night, and his wife generally taking charge of the store. Mr. O’Toole saw that the hole was uncovered when he returned from his work at half-past six o’clock Sunday morning. His wife had covered the hole with a couple of planks which were nailed down. Mr. O’Toole, on returning Sunday morning, seeing these planks lying out in the street on the car track, replaced them before he went into the house, and the planks were still in place when he went to work at seven o’clock on Sunday morning.
Plaintiff was a neighbor, living about one block from the premises, and was a frequenter of the store in the premises.
No notice was given to defendant, the landowner, that the
It appears that the platform was not a part of the sidewalk, for it led from the sidewalk to the house and was an approach to the store, the door of which was about seven feet from the sidewalk. It was not used for any purpose except in connection with the store, for the cellar door formerly existing in the platform had been removed and slats permanently screwed down substituted. The inference is that the platform was part of the demised premises, and so the tenant, not the owner, in the absence of an agreement to the contrary, and no right of entry being reserved to the landlord, would be liable for repairs. Board of Health v. Eastlack, 39 Vroom 585.
The nuisance, according to the proof, did not exist at the time of the letting, and so the liability for repairs rests upon the tenant. Ingwersen v. Rankin, 18 Vroom 18 (at p. 22).
Moreover, unless the owner could be held to be an insurer that the sidewalk on his premises shall be safe (assuming that the platform formed a part of the sidewalk), then there was a question of fact as to his negligence under all the circumstances. The court decided that for the defendant, and such question of fact is not reviewable here.
Whether the landlord had a right of entry for the purpose of repairing was a question in the case decided favorably to the defendant. The decision of this was a jury question, and the court, sitting as a jury, was charged with the conclusive determination of this matter of fact. O’Malley v. Gerth, 38 Vroom 610.
The judgment is affirmed.