The opinion of the court was delivered by
Thе Law Division granted motions for dismissal of the plaintiff’s complaint against the tenant-defendant Emil Wanner, t/a Washington Pork Store, and entered judgment for the landlord-defendant 237 Washington Street
The building located at 233 Washington Street, Hoboken is owned by the 237 Washington Street Corporation and includes a street front store, a cellar underneath the store, and two apartments above the store. The street front store and the cellar are occupied by the tеnant Emil Wanner, trading as the Washington Pork Store. The public sidewalk in front of the store is paved from building line to curb and on the sidewalk near the corner of the building there are diamond plate steel cellar doors which cover the street entrance to the cellar. The only other entrance to the cellar is inside the store. Mr. Wanner testified that he continued uninterruptedly as a tenant of the store and cellar after his written lease had expired in 1938; that he used the cellar for the storage of meat and equipment; that the gas and electric meters for the apartments above the store had been located in the cellar but were removed recently; that he had the key to the cellar doors which were opened for airing of the cellar every day during the summers hut not during the winters; and that although he had never repaired or painted the cellar doors the landlord had repaired them some years earlier. Mr. Hausold, president of the 237 Washington Street Corporation, testified that to the best of his recollectiоn new cellar doors were installed by the corporation in 1951; that the sidewalks surrounding the cellar doors had been repaired by the corporation in 1953; that since 1951 the cellar doors had not been repaired; that the tenant Wanner had “sole use of the basement”; and that the only agreement between the landlord corporation and the tenant Wanner relating to the cellar doors was that the tenant would paint them. Mr. Cohen testified that when in 1951 his firm worked on the cellar doors for the landlord corporation it installed a new frame and hinges but did not replace the old diamond plate steel doors.
For the protection of its patrons, every commercial establishment must maintain its premises, including means of ingress and egress, in reasonably safe condition. See
In McKeown v. King, supra, the premises were owned by Mrs. King and were leased to the J. G. McCrory Company. Mrs. King had constructed a drain across the sidewalk and had covered it with a metal covering flush with the sidewalk. The drain cover had been permitted to become loose and thе plaintiff was injured when the cover lifted as she passed over the drain. The owner and the lessee could readily have taken measures to prevent the drain from becoming a hazard to pedestrians. The Court of Errors and Appeals stated that, even if the original construction was entirely proper, the plaintiff could hold both the owner and the lessee responsible upon a showing that they failed to exercise due care in keeping the sidewalk in a reasonably safe condition. In O’Malley v. Gerth, supra, the plaintiff was injured when he stepped on a coal hole cover which had carelessly been permitted to become a hazard to safe passage. The court held that evеn though the defective condition arose while the premises were in the possession of a tenant, the landlord, who could exercise the right of repair, was also accountable to the plaintiff. In Kelly v. Lembeck & Betz Eagle Brewing Co., supra, the plaintiff suffered injury when he fell on a smooth and slippery cellar door. In holding the landlord responsible, the court rejected the cоntention that the tenant in possession, whose control of the cellar door was not exclusive, was alone accountable to the plaintiff. In Young v. National Bank of N. J., supra, the plaintiff was injured when he slipped on a sidewalk grating which furnished air and ventilation to the cellar of the defendant’s building. In sustaining recovery, the court said:
“The construction of the airway with the grating, flush with the sidewalk, was not a nuisance per se, but was a thing the adjacent owner might do subject to the right of free and safe passage of the public over and along every part of the sidewalk. However, the owner, in making such use of the way, was required to do so by such a method of construction as not to create a nuisance, but having done this was under the further legаl duty to exercise reasonable care to keep the structure safe for the use of the public. Meyers v. Birch, 59 N. J. L. 238, 239; O’Malley v. Gerth, 67 N. J. L. 610, 612; Rupp v. Burgess, 70 N. J. L. 7, 9; McKeown v. King, 99 N. J. L. 251, 258, 259.”
In the instant matter there was evidence from which the jury could reasonably find that the landlord-defendant and the tenant-defendant each exercised a measure of control over the cellar doors and that each failed to disсharge his responsibility to the plaintiff. See
Pirozzi v. Acme Holding Company of Paterson,
5
N. J.
178, 188 (1950);
Marzotto v. Gay Garment Co.,
11
N. J. Super.
368, 372, 376
(App. Div.
1951), affirmed 7
N. J.
116 (1951).
Cf. Smith v. Claude Neon Lights, Inc.,
110
N. J. L.
326
(E. & A.
1932);
Fort v. Reid Ice Cream Co.,
98
N. J. L.
559
(E. & A.
1923). The landlord (or its predecessor in title) had installed the cellar doors for its own purposes, had made some repairs to them and to the sidewalks which surrounded them in 1951 and 1953 but not thereafter and, although it had rented the cellar along with the street front store to the tenant-defendant, had permitted the gas and electric meters for the apartments above the store to remain in the cellar. The tenant, while it had neither installed nor repaired the cellar doors, had used them extensively in his business and had the key which controlled access to the cellar not only for his purposes but also for examination of the meters and any other legitimate purposes of the landlord and the apartment tenants. Both the landlord and the tenant were in the position to examine the cellar doors and take steps towards correcting any defects. The landlord could readily make the necessary repairs and while the tenant has suggested that, under his leasing arrangement the duty to repair rested with the landlord, it would seem that he could with equal readiness call upon the landlord to make the repairs
In the light of the foregoing, it is evident that the trial court should have submitted to the jury the plaintiff’s claim against the tenant as well as her claim against the landlord; instead, it dismissed the claim against the tenant, and while the jury did find that the landlord had been negligent, it precluded recovery by its finding that the plaintiff was guilty of contributory negligence. The plaintiff as a user of the sidewalk was under the obligation of • exercising due care for her own protectiоn; but in determining whether she properly discharged her obligation, recognition must be given to the judicial view that a member of the traveling public has the right to assume “that there is no dangerous impediment or pitfall” in any part of the sidewalk (Saco v. Hall, 1 N. J. 377, 382 (1949)), and is not obliged to anticipate dangerous conditions although he must exercise reasonable care to avoid them “if he sees or is aware of them.” McManus v. New Jersey Waler Co., 22 N. J. Super. 253, 262 (App. Div. 1952). See Taverna v. Hoboken, 43 N. J. Super. 160, 164 (App. Div. 1956), certification denied 23 N. J. 474 (1957):
“This manhole and its cover were not necessary or normal components of a public sidewalk. They were abnormal structures made a part thereof for the convenience of the city. And obviously itwas a foreseeable consequence that injury might result if they were permitted to becomе a hazard through ordinary wear and tear. Members of the public are entitled to assume that the sidewalk, for its full width, is free from obstructions or pitfalls which would render its use dangerous. So protective is this assumption in the law that pedestrians do not have to look for or be on guard for such dangers; their only duty is to avoid them if observed. Saco v. Mall, 1 N. J. 377, 382 (1949); McManus v. New Jersey Water Co., 22 N. J. Super. 253, 262 (App. Div. 1952); Matheke v. United States Empress Co., 86 N. J. L. 586 (E. & A. 1914); Durant v. Palmer, 29 N. J. L. 544 (E. & A. 1862).”
The plaintiff testified that she had walked carefully and had been looking down because the sidewalks were slippery; that she had seen the cellar door many times but had not known that there was anything wrong with it; and that after she had placed her left foot on the cellar door, her right foot caught on its snow-covered upraised corner and she stumbled and fell. While there was some evidence suggesting that the plaintiff’s fall may have occurred at a point on the sidewalk other than the cellar door, there was indeed little, if anything, to indicate that the plaintiff did not exercise the amount of care which an ordinarily prudent person, situated as she was, would have exercised for her own protection. Tested by the guiding principles expressed in Taverna v. Hobolcen, supra, the jury’s finding, of contributory negligence might be viewed as being against the weight of the evidence; in any event, we believe that it was improperly influenced by extensive testimony relating to a prior accident of the plaintiff which, under our present evidential rules, should not have been received in evidence. See Quellmalz v. Atlantic Coast Elec. Ry. Co., 94 N. J. L. 474 (E. & A. 1920); Vander Groef v. Great Atlantic & Pacific Tea Co., 32 N. J. Super. 365 (App. Div. 1954). Cf. Lowenthal v. Mortimer, 125 Cal. App. 2d 636, 270 P. 2d 942 (1954); McCormick, Evidence 325, 350 (1954); 1 Wigmore, Evidence 667 et seq. (3d ed. 1940).
During the trial, the рlaintiff’s counsel pointed out that proof that she had a previous accident “would have no bearing as to whether the defendants caused this accident.” When he later objected to a specific question as to when
We are satisfied that there should be a new trial on all issues between all of the parties. Although the contention that the new trial should be limited to damages was advanced in the appellant’s brief, it was not pressed at oral argument, and has no substance whatever. The additional trial rulings complained about need not be listed or discussed here since their controlling procedural aspects may be dealt with by appropriate amendments before the retrial takes place.
Reversed.
For reversal—Chief Justice Weinteaub, and Justices Heheb, Waohbitfeld, Bueliitg, Jacobs, Eeancis and Peoctoe—7.
For affirmance—None.