14 N.J. Misc. 699 | N.J. | 1936
The opinion of the court was delivered by
This is defendant’s appeal from judgments entered by the trial judge, sitting without a jury, in favor of the infant plaintiff for $100 and in favor of the father for $41 and costs.
The defendant owned a four-story sixteen-tenant apartment house building in Newark, New Jersey. The basement apartment was leased by a Mrs. Bowman, with whom the infant plaintiff was temporarily domiciled. In order to obtain access to this apartment it was necessary to descend a stairway leading from the sidewalk. While descending this stairway the infant plaintiff fell, sustaining the injuries for which she now seeks to recover. There was evidence that the step on which the plaintiff fell was loose and rotten and had been
In the absence of any promise on the part of the landlord to repair, defendant’s liability must rest solely on the fact that it retained control and possession of the stairway in question. The court so found. We are then met with the question as to whether there is any legal evidence to support such a finding. If so, the judgment must be sustained. Tor, as stated in Portley v. Hudson and Manhattan Railroad Co., 111 N. J. L. 204; 168 Atl. Rep. 184; affirmed, 113 N. J. L. 13; 172 Atl. Rep. 384, “this court will not review the findings of the District Court on questions of fact beyond inquiring whether there was any legal evidence on which the findings may be based.” See, also, Doolittle v. Mark (Court of Errors and Appeals), 88 N. J. L. 515; 94 Atl. Rep. 569. Evidence was adduced to show that repairs to this stairway were made subsequent to the accident. This, though not evidence of negligence, since it may be but the action of a prudent man in taking steps to prevent the recurrence of an event he had no reason to foresee in the first instance, does tend to show that control and possession of the premises remained in the landlord. Perry v. Levy, 87 N. J. L. 670; 94 Atl. Rep. 569. It does, moreover, tend to show that the stairway was not a part of the leased premises for apparently the landlord was not deprived of its right of entry to make the repairs. Its right of entry and control over the damaged premises rendered it liable for injuries caused by the defect. Siggins v. McGill, 72 N. J. L. 263, 264, et seq.; 62 Atl. Rep. 411; Gillvon v. Reilly, 50 N. J. L. 26; 11 Atl. Rep. 481.
Thus liability, in the case at bar, is not sought to be fastened upon the landlord because of an implied contract of fitness of the leased premises, or upon an agreement to repair, but rather is it based upon the theory that the landlord retained control of the stairway in question. This theory of liability finds perfect expression in section 360 of the Bestatement of the Law of Torts:
“A possessor of land, who leases a part thereof and retains in his own possession any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for bodily harm caused to them by a dangerous condition upon that part of the land retained in the lessor’s control, if the.
The proofs were plenary to support the result reached. Judgment is affirmed, with costs.