131 N.Y.S. 445 | N.Y. App. Div. | 1911
On the 29th day of September, 1908, the plaintiff, and her husband were lessees of -an apartment on the third floor of a
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 hei* 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 '
The court left it to the jury to determine whether or hot 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 witfi respect to the grape skin, regardless of the question of negligence with "respect to lighting thé 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.
W¿ 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 defend
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.