63 N.J.L. 188 | N.J. | 1899
The opinion of the court was delivered by
Access from a tenement-house to a rear yard was afforded by means of a cellar stairway covered by a door counterbalanced with weights. The weights became detached
If we assume negligence in the landlord, still no right of recovery against him was established. Knowledge of the danger compels the assumption of the risk of use in such a case. Mullen v. Rainear, 16 Vroom 520; Frank v. Conradi, 21 Id. 23. The plaintiff’s daughter was fully aware of the condition of the door when she attempted to hold it on her return down the stairway. She knew that the weights were off and deliberately assumed what risk there was in descending. An adult, of course, would be without remedy, and we think that this girl was old enough to be held guilty of contributory negligence in a case with such simple elements. Children much younger have been subjected to judicial opinion in that regard. Sheets v. Connolly Railway Co., 25 Id. 518; North Hudson County Railway Co. v. Flanagan, 28 Id. 696. Generally, as to infants, that question is for the jury, but where the case is plain it is the court’s duty to control it. The question here is not exactly that of negligence, but rather of the assumption of an obvious risk. The case I shows, indeed, that there was no other way to return to the ' house except through the apartment of another tenant, but that fact is immaterial. Even had the girl asked, and been refused, permission to return by that way, she would not have been justified in assuming a risk that she thought to be dangerous. Liability, surely, cannot be made to depend on the degree of the risk. It is argued that, as she had come up safely she might assume that she could go dowu safely, i but that -was a mere matter of judgment, and the very arguI ment implies ability to reason. If she was old enough for \ that she was old enough to be subjected to the consequences \of a mistake.
The other errors alleged need not be considered.
Under the authority of Smith v. Ocean Castle, 30 Vroom 198, let the judgment be reversed, and let judgment of non-suit be entered in this court, with costs.