The defendant, on December 25, 1890, was the owner of a four-story tenement house, No. 253 North Sixth street, in the city of Brooklyn, and was still the owner thereof at the time of the trial of this action, on December 7, 1891.
The house is a double tenement, occupied by several families.
The sister of defendant, Mrs. Annie Sullivan, on December 25, 1890, occupied apartments in the fourth or upper st@rv of the building, the defendant reserving control and management of halls.
The plaintiff, on the last named, day, went to dine with his sister at her said apartments, arriving there about one o’clock p. M.
After dinner, and at about five o’clock, he left her apartments, and descended the first flight of stairs, lit up partially by the leaving open of the door o£ his sister’s apartments; but finding it very dark when he reached the top of the second flight, he called for a light, and Mrs. Gertrude J. Dana, who occupied rooms at the head of said second flight of stairs, opened her door, procured a lamp, and turned to go into the hall with the lamp, when she saw plaintiff fall to the bottom of the stairs.
The fall was from the second step from the top of the stairs to the bottom.
Plaintiff, when Mrs. Dana’s door was opened, started to descend the second flight of stairs, and when on the second step, which was in a worn condition, it gave way under him, and a piece broke from the edge, and plaintiff to save himself from .a fall seized the balustrade, which gave way, and the plaintiff fell to the foot of the stairs, striking upon his head, rendering him unconscious for five weeks, and he has since suffered great pain from the effects of the fall, and has been unable to perform his usual work, and the injuries are permanent to the right eye, and he is likely to lose the sight thereof; also a partial paralysis of the left side, and wasting of the left leg, and other serious permanent disabilities. Plaintiff was never sick, out of work or idle before that time, and subsequent to the injury has not been able to perform marital duties.
The balustrade was weak and broken at the time of the accident. The defendant’s attention was called to the condition of these stairs ■ on Monday after Thanksgiving before the accident, by Mrs. Dana, one of his tenants, and upon her urging him to repair them, he replied “ he would not fix any more if the whole house fell down and broke their damned necks.”
Goxe & Stratton (H. B. Hubbard, of counsel), for resp’t;
Purring-ton & Shannon, for app’lt.
It is established by the evidence, or can be fairly inferred therefrom, that the defendant owned the tenement house mentioned in the complaint; that the halls and stairs thereof were in his charge, care and control; that the banister of the second flight of stairs was badly out of repair, and the second step from the top of that flight had worn so thin as to render it liable to spring and break off under the pressure of the foot, all of which the defendant knew; that the plaintiff and his sister, a