Wesener v. Smith — 89 A.D. 211

Majority

p. 211

Barbara A. Wesener, Respondent, v. Eliza Jane Smith, Appellant.

Headnote

Negligence — injury to a tenant from falling over a heap of rubbish in a ya/rd used by herself and her cotenants — liability of the landlord — testimony of the plaintiff as to her failure to look, and that had she done so she would not have seen the rubbish — sufficiency of an allegation of the landlord's negligence.

Evidence that one of several tenánts of a house, in the yard attached to which were a number of cans for the deposit of ashes and garbage by the tenants,' while returning from emptying a* pan of ashes into one of the cans, sustained personal injuries by falling over an accumulation of rubbish, about twenty inches high, which had existed for a period of several months and was partly concealed by grass and weeds, is sufficient, in the absence of proof that the injured tenant did any act toward creating the accumulation of rubbish, to sustain a finding that the landlord was negligent.

Testimony given by the injured tenant to the effect that she knew that the yard was kept in terrible condition, and the fact that, when asked why she did not look where she was going, she testified, “ I didn’t think of looking; if I had looked I would never have had the fall,” if standing alone, would establish that she was guilty of contributory negligence. Where, however, the plaintiff subsequently qualifies this testimony by stating that she could hot have seen the rubbish by looking, but could only have seen it by stooping down, the question whether, under these circumstances, she was guilty of contributory negligence should be submitted to the jury.

An allegation in the complaint that the yard was allowed to and did become obstructed “with debris, sticks, stones and other obstacles, so as to make it dangerous for one to walk or use said yard or court without being injured by tripping or falling over said debris or obstacles,” is a sufficient allegation of negligence on the part of the landlord.

Appeal by the defendant, Eliza Jane Smith, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of • the clerk of the county of Kings on the 16th day of March, 1903, upon the verdict of a jury for $750, and also from an order bearing date the 12th day of March, 1903, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

James Troy, for the appellant.

Grate Nathan, for the respondent.

The plaintiff was one of several tenants occupying a house belonging to the defendant. In the yard at the rear of the house a num

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her of cans were provided for the deposit of ashes and garbage by the tenants. These cans were placed a short distance from» a flag" walk which led out into the yard. According to the plaintiff’s testimony she went into the yard with a pan of ashes, the contents of which she emptied into one of the cans; and as she was leaving the cans, proceeding toward the flag walk, she" stumbled and fell over some obstructions, which had been allowed to accumulate under the grass and weeds, which she described as being about twenty inches high at this point. The plaintiff’s hip was fractured as a result of her fall; and she has recovered $750 damages in the present action, on the ground that the defendant was negligent in having allowed the yard in the vicinity of the ash cans to become obstructed by the accumulation of debris of various sorts at that point. Her testimony tended to show that this accumulation had existed' for several months—• certainly long enough to impute notice to the owner of the premises.

In behalf of the appellant it is conceded to have been the duty of the defendant to exercise ordinary care to keep the yard, used in common by the tenants, in a safe condition for the purpose of such use, thus recognizing the rule stated by the New York Court of Common Pleas in Canavan v. Stuyvesant ( 7 Misc. Rep. 113 ) where it is said : “A landlord of a tenement house is bound to keep the yards, hallways, coal holes, etc., in proper repair and reasonably safe condition, and is chargeable in damages to any one injured for a failure to do so.” It is argued, however, that it was neither alleged in the complaint nor proved upon the trial that these premises were unsafe. We are not able to concur in this view. The complaint alleges that the yard was allowed to and did' become obstructed “ with debris, sticks, stones and other obstacles, so as to make it dangerous for one to walk or use said yard or court without being injured by tripping or falling over said debris or obstacles.” This seems to us a sufficient allegation of negligence. It was sustained by proof that refuse of every kind, bottles and bricks and stones and rags had accumulated between the path and the fence near which the ash cans stood; that grass was growing among and over these objects to a height sufficient to partially conceal them ; and that this state of things had existed for several months. We think a jury might fairly deem such a condition of the premises dangerous.

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for the use of the tenants, and that such an accident as befell the plaintiff might reasonably have been anticipated by the landlord or the asrent of the landlord who allowed it to exist.

It is argued, in the second place, that tire obligation of ordinary care on the part of the landlord does not extend to danger created by the tenants themselves. This rule, however correct in its application to other cases, does not apply to obstructions created by the acts of tenants other than the person injured, where the landlord has undertaken, as in this case, to provide safe access to a particular portion of the premises. There is nothing to show in the testimony here that the plaintiff herself had done any act toward creating the condition of things in the yard of which she complained.

The most serious question in the case relates to the issue of contributory negligence; and, if the jury had found against the plaintiff on that issue, 1 do not see how we could have interfered with their verdict. She testified that she knew that the yard was kept in a terrible condition, and when asked why she didn’t look where she was going, answered: “ I didn’t think of looking. If I had looked I would never have had the fall.” If this testimony stood alone, the appellant would have been entitled to have a verdict directed in her favor. It was subsequently qualified, however, to such an extent as to make it incumbent upon the learned trial judge to submit the question of contributory negligence to the jury. The plaintiff, on being further questioned, stated that she could not have seen the rubbish by looking, but could have seen it only by stooping down; and it was for the jury to say whether under these circumstances she was bound, in the exercise of reasonable' care, to take that precaution. Hnder the authorities, her previous knowledge of the dangerous condition of the yard was not conclusive evidence of contributory negligence on her part as matter of law. (Palmer v. Dearing, 93 N. Y. 7 ; Peil v. Reinhart, 127 id. 381; Dollard v. Roberts, 130 id. 269.)

We think the judgment must be affirmed.

Present — Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ.

Judgment and order unanimously affirmed, with costs.

Cases cited

Canavan v. Stuyvesant 7 Misc. Rep. 113 N.Y.C.P. 1894-02-05 p. 212
Palmer v. Dearing 93 N. Y. 7 N.Y. 1883-06-05 p. 213