43 N.Y.S. 815 | N.Y. App. Div. | 1897
The defendant owned a’ tenement house on the south side of Seneca street, in the city of Buffalo. It was occupied by two tenants. The rear portion, some two years before the accident hereafter referred to, was leased by the, defendant to the plaintiff’s husband; the front portion was occupied by another tenant. The Only means of access to the rear portion of the house from the
Her counsel upon this appeal seems to concede as much m nis points.
On the morning of the 9th of Hay, 1894 — a bright, clear morning— the plaintiff had passed out through this alley to obtain a basketful of clothes from a place outside, and soon returning with a large washbasket full of clothes, about three feet wide and four feet long, carrying the basket in front of her, she, without looking ahead of her, was passing through the gateway. The plaintiff testifies : “ I carried the basket of clothes in front of me; it was a large washbasket; the basket was about three feet wide, and was four feet "long; it was an ordinary clothes basket; the plank which stuck up was inside the gate; I "just stepped inside the gate, and this board took my foot and threw me forward. Q. How did you get in the gate with the clothes basket % A. I went in kind of sideways ; I was looking across the street, and I was looking kind of sideways, and this board took me and threw me forward. Q. What were you looking across the street for ? A. Because I heard
When the plaintiff. rested, the counsel for the defendant moved for a nonsuit upon the grounds: First, that the plaintiff had hot shown herself free fr'Qin contributory negligence, and, second, that the defendant owed nóxdnty to the plaintiff as to that portion of the walk inside of the gate;- x The motion was denied and the defendant gave proof, and upon the close of the whole evidence the motion was renewed upon the same grounds, and,-being again denied, was excepted to. . X
The counsel for the defendant askeckthe court to charge the jury that if the walk and the alley, under the Xsidence of the case, were occupied and used only by the plaintiff .and B@r family, as tenants ■of the defendant, and by.no other tenant of .the pi^anises, then the plaintiff could not recover, which was refused; and they1defendant’s' counsel excepted.
The plaintiff utterly, failed in establishing her freedom fppm contributory negligence.
From the above statement of facts it will be seen that the\evidence' tends strongly to show that she was negligence as a matter of law. guilty of contribuid!
Knowing, as she did, the condition of this plank, which created an obstruction at the gateway, she should have paid some attention to where she was going, as her vision, in a manner, was obstructed, and her locomotion interfered with in carrying the burden in front of her, but, instead of doing so, she was looking across the street while proceeding on her journey. The nonsuit should have been granted for that reason. (Stephenson v. Equitable Gas Light Co., 14 N. Y. Supp. 67, and cases there cited.)
The appellant invokes the rule that the lessor of a building, in the absence of fraud or any agreement to that effect, is not liable to the tenant or others lawfully upon the premises by his authority, for their condition, or that they are tenantable and may be safely and. conveniently used for the purpose for which they were apparently intended. (Jaffe v. Harteau, 56 N. Y. 401, and cases there cited.)
The evidence does not disclose any specific agreement between the defendant and the lessee of the rear portion of the premises that
The respondent’s counsel contends that this case comes within the rule that where a landlord leases different parts or apartments in a building to several tenants, each tenant occupying only a portion of the house, it is the landlord’s duty to see that the ■ means by which each tenant can go to and from the portion of the premises occupied by them is kept in reasonable condition of safety and repair. (Citing Peil v. Reinhart, 127 N. Y. 381, and kindred cases.)
It is difficult to see how this rule has any application here. It applies only to passages, stairways or alleys' used in common by the different tenants of one building.
In the case at bar the alleyway was only used by one tenant, and was'a part only of one tenancy, and, therefore, the same rule would be applied as if the plaintiff’s husband were the sole tenant of the building.
Had the defendant permitted the alleyway to remain in the same condition as when it was first rented to the tenant, then the contention of the defendant in this respect could be sustained. But it appears that the defendant, for purposes of his own, during the existence of the tenancy, interfered with this alleyway, dug it up, and there was ¿vidence tending to show (which made it a question for the jury) that he did not leave the alleyway in as good condition for use as when the premises were rented ; so the question arises, if there were negligence on the part of this defendant in interfering with this alleyway, and, as a result of that negligence the plaintiff was injured, whether she would not have an action therefor. It would seem upon principle that she would, if she was free from contributory negligence, and, this being so, we must sustain the trial
The. judgment should be reversed and a new trial should be granted, with costs to abide event.
All concurred.
judgment and order reversed and a new trial ordered, with costs to abide the event.