9 N.J. Misc. 1230 | N.J. | 1931
This is defendant’s rule to show cause why a verdict by a jury against the defendant and in favor of the plaintiff for $10,000 should not be set aside and a new trial ordered.
The plaintiff was a tenant of the defendant, occupying the second floor of the building called an apartment house, the said building being occupied by several tenants. At the rear of the building was a stairway with landing or platform at each back door. The use intended to be made of this stairway and platform, with the exception of using it as a place to put garbage cans for removal by the janitor, is disputed, though we think this dispute does not 'enter into the issue. There was a railing around the platform. Plaintiff was previously partly crippled in her ankle and also it seems had a defective back due to infantile paralysis. She went out to put some papers in the garbage cans and says that the garbage that was there had not been removed and as she was placing the papers for removal as garbage she slipped on the platform and grabbed for the railing which broke with her and she thus was thrown to the ground. The complaint alleges negligence in that the defendant was under the duty of keeping the premises reasonably safe for the proper use and enjoyment of the plaintiff but "wholly failed and neglected to do so but permitted and caused a certain back porch to become worn out, unfit for use and unsafe and insecurely fastened and dilapidated to such an extent that when the said plaintiff was using the said porch the railing enclosing the same and appurtenant thereto gave way because of the facts and conditions hereinbefore mentioned, so that the said plain
Of the seven reasons filed, the fifth and seventh are not framed in accordance with rule 125, and therefore need no consideration. The sixth, that the verdict was excessive, and the fourth, that the verdict was contrary to the charge of the court, are not argued. The second, that the verdict was against the weight of evidence, will be presently considered, as will also the first, that the court refused to direct a verdict for the defendant on the ground of assumption of risk by the plaintiff, and contributory negligence on the part of the plaintiff; that the breaking of the rail was not the natural and proximate cause of the accident; that there was no proof in the case to support the allegations of the complaint; and the third, that the jury should have found for defendant for the same reasons as specified in number 1.
The next question in order is whether, assuming the jury found as above, the defendant negligently failed to provide and maintain a railing sufficient for that purpose. The evidence is, as usual, in conflict; but it indicates a railing two by three inches in cross section, about seven feet long, and nailed down at the ends to the top of posts. The witness Crawford testified that he nailed down the ends, which were loose in August, 1926, six months before the accident; that it was then “safe to a certain extent” but “looked bad to me. I judge about two foot from the end next to Texas avenue was a very bad looking place * * * it looked more like a knot that would be somewhat rotten.” William Bell, former janitor, said the rail was “always good.” On cross-examina
It is argued that plaintiff assumed the risk, and the case of Saunders v. Smith Realty Co., 84 N. J. L. 276, is relied on. But in that case there was no evidence of invitation. In this case the evidence is explicit on that point. Contributory negligence was for the jury, and their finding on that point should not be lightly questioned here. As to the requests to charge, they were either adequately covered or properly refused, and in-view of the foregoing discussion need no specific notice.
The rule will be discharged.