81 N.J.L. 558 | N.J. | 1911
Between the hours o£ eight and nine o’clock of Saturday night, April 24th, 1909, the plaintiff, while shopping with a lady companion in the defendant’s large department store in Newark, New Jersey, and proceeding down the stair or passage way leading from the first floor to the basement, stepped upon the third step from' the top of the stair, tripped and fell down the stairway, sustaining the injury for which she has brought suit.
The plaintiff claims her fall was caused by a loosened brass edging or nosing originally fastened by screws to the outer edge of the step for the protection of the wood from wear, and was, as the testimony of the plaintiff’s brother (who saw it on the Monday following the accident) states, about one-quarter of an inch in thickness, by about one inch in width.
The precise negligence imputed by the plaintiff to the defendant is not, that it had, originally, improperly constructed this metal strip upon the step, but that, since its construction, the company had suffered it to become loosened from the step and raised to an extent sufficient to catch the heel of her shoe as she trod upon the step. In her testimony she thus particularizes the accident: That when she went down the stairs she did not, either before or at the time of her fall, notice the brass was loosened, but that when she and her companion returned upstairs, about a half hour later, she examined the step and found—to use her words, “This brass they had on the edge was loose on it, and it wrns kind of raised and my heel caught in it;” that the nosing piece was about one-eighth of an inch away from the step and about the same distance above the level of it. Pier companion (Miss Ingram) also testified that they went down stairs together, and she did not then notice what caused plaintiff’s fall, but that when they came back upstairs she noticed the brass was loose.
No witness says that this condition existed prior to the time of the occurrence of the accident, nor was there any evidence that the step was in prior disrepair in any respect.
The brief of the plaintiff in error concedes the fact to be, as the evidence also shows, that “this stairway was used every
When the plaintiff rested her case it had not appeared that the defendant company had been guilty of any want of reasonable care in the keeping of its store safe for her use, for the reason that she had failed to show that the defective condition of the brass edging which she said existed on the night of the accident of April 24th had either (a) been in fact brought to the previous notice of the defendant, or, failing in proof of such actual notice, that (b) the defect had existed for such sj)aee of time before that occurrence as would have afforded the company sufficient opportunity to make proper inspection of its stairways to ascertain their condition as to safety, and to repair their defects. In the absence of proof
It need hardly be added that the company was not an insurer of the safety of its customers against accidents happening- to them while walking or running up and down its stairways in its store. Its duty to the plaintiff was satisfied when it used reasonable care to maintain them in a condition safe for her proper use.
The following' decisions, rendered in this state in actions between landlord and tenant in which the tenant brought suit against his landlord for injuries arising from the failure of the latter to keep in safe repair the rented premises, involve principles analogous to those where the relative rights and duties of customer and storekeeper are at stake, and will be found to sustain the rules just declared. Johnson v. Brewing Co., 46 Vroom 282; Timlan v. Dilworth, 47 Id. 568; Frank v. Conradi, 21 Id. 23.
In DeMateo v. Perano, 51 Vroom 437, evidence of the previous knowledge of the landlord of the defective condition of the roof leader in question, was deemed, in the opinion of this court, to be an element essential to carry the case to the jury.
In Timlan v. Dilworth, supra, the action was by the tenant against her landlord for the latter’s negligence in not repairing a dumb-waiter which fell and injured the tenant, and this court held that the landlord’s failure to make an inspection for the purposes of discovery and remedy of the apparatus in question, in the brief interim between the taking of title and the occurrence of the accident, was not a failure to make an inspection within a reasonable time, and that to leave this question to the jury was error.
This case also holds that when the facts are undisputed and different inferences cannot reasonably be drawn from the same facts, what is a reasonable time for inspection is a question for the court, not for the jury.
The following cases, decided in other jurisdictions, will be found to be pertinent: Joshua v. Breithaupt, 90 N. Y. Sup. 1053 ; McCabe v. Kastens, 32 Id. 249; Henkel v. Murr, 31 Hun 28, and Idel v. Mitchell, 158 N. Y. 134.
The judgment below should be affirmed.
For .affirmance—The Chancellor, Chief Justice, Garrison, Swayze, Reed, Trenohard, Parker, Bergen, Yoorhees, Minturn, Bogert, Yredenburgh, Yroom, Congdon, JJ. 14.
For reversal—Hone.