62 N.J.L. 766 | N.J. | 1899
The opinion of the court was delivered by
The judgment removed in this cause was recovered, on verdict, by Ira S. Filter and wife for injuries sustained by Mrs. Filter through falling into an opening in the sidewalk of a public street in Jersey City, from which opening a flight of steps led to the cellar of a building owned, at the time of the accident, by Dr. Isaac N. Quimby, the defendant’s intestate, who died during the trial of the action brought against him.
The errors assigned are based on exceptions taken at the trial. Those needing consideration challenge the submission of the case to the jury and the ruling of the judge on the subject of contributory negligence.
It is not disputed that if an opening in a public street is not properly guarded it is a nuisance; nor that, if such nuisance inhere in the permanent structure of a building, responsibility for its maintenance rests on the owner. It is urged in this ease that in the construction of the building the cellar stairway was properly guarded; that its guards became impaired through the default of a tenant, in exclusive posses
Nor upon the question of whether the accident was due to lack of proper safeguards could the court take the case from the jury. The opening of the cellar steps was originally guarded on the sides by iron railings, one of which had been broken away. Which railing was gone was a matter of dispute, as was also the position of certain merchandise of the tenant placed along the building which was supposed to effectually guard the side of the opening from which the railing was missing. The evidence that the opening was unguarded on the side towards which Mrs. Filter approached it was very slight, but sufficient to go to the jury. The sidewalk was fourteen feet wide and the cellar steps descended, transversely thereto, from an opening about four feet square adjoining the side of the building. The street ran north and south. Mrs. Filter with a Mrs. Tietjen and her young daughter were passing along the sidewalk, coming from the north. It was after nightfall, but the street was well lighted.' In some way or
On this state of proof it was not error to refuse to witli■draw the case from the jury, but on the subject of contributory negligence there was such misdirection as must avoid the verdict and consequent judgment. The judge instructed the jury that Mrs. Filter was not bound to use ordinary care as she passed along the sidewalk, unless there was some means of warning or the “ pitfall ” was guarded. This instruction was afterwards modified as follows: To a request to charge that if Mrs. Filter knew of the existence of the dangerous place, or if it was open and obvious to the sight, she was bound to use reasonable care to avoid the danger, the judge responded by saying that if she saw the dangerous place she would be bound to use ordinary care to avoid the danger. He broadened this ruling by charging a request that if she hnew or saw the dangerous place she would be guilty of contributory negligence in not avoiding it, but in response to a request to charge that she was guilty of contributory negligence if she did not see the “ cellarway,” provided she would.
It is common knowledge that adjacent to the buildings on a city street there are various appendages for their convenient use that project into the sidewalk. It might well be that Mrs. Filter, with due circumspection measured by the standard of ordinary care, would have avoided the accident that befell her, although she did not previously see or know exactly the' danger of such an accident. It was error to limit the jury in their inquiry on that subject.
I shall vote for a reversal and a venire de novo.
For affirmance — Lippincott, Ludlow, Adams. 3.
For reversal — The Chancellor, Chief Justice, Depue, Van S yokel, Dixon, Garrison, Gummere, Collins, Bogert, Nixon, Hendrickson, Vredenburgi-i. 12.