Idel v. Mitchell , 39 N.Y.S. 1 ( 1896 )

Ingraham, J.:

The plaintiff had, with her husband, occupied an apartment in the premises Ho. 12 West Third street in this city for about ten years prior to February 24, 1893. The defendant had purchased the premises about eight years prior to that time. It appeared that the tenants in the building were required to clean the stairways weekly in turn, and the plaintiff was in the habit of once in each week sweeping the stairways leading from the floor on which her apartments were situated to the floor below. At the time of this accident the apartment on the floor below was vacant, and plaintiff undertook to sweep the stairs from the floor below, which was the second floor, to the first floor. Some months before this accident a carpet had covered these stairways, but it had been removed, leaving the stairs without a carpet or other cover. Some time before the twenty-fourth day of February the plaintiff had noticed that there were several nails on these stairs, and had called the attention of the defendant’s agent, when he called to collect the rent, to that fact, and the defendant’s agent requested the plaintiff to get a hammer and drive the nails in, which request she had complied with, and had driven in all that she saw. On the 24th day of February, 1893, the plaintiff was engaged in cleaning these stairs, as required of her by her contract with the defendant, when her foot caught in a nail that was protruding near the edge of one of the steps, and she was thrown down and sustained injuries, to recover for which this action is brought.

The husband of the plaintiff testified that on the day after the accident lie examined the stairs from which plaintiff alleges that she fell, and found there nails extending out of the wood about one-half an inch. The defendant’s agent who collected the rent does not deny that he was informed by the plaintiff of the existence of these nails. He does deny receiving the notice that plaintiff’s husband says he gave him, but does not deny receiving notice from the plaintiff herself. The defendant called witnesses to show that there were no nails upon these stairs in June preceding the accident, but the plaintiff testified that at that time the carpet had not been removed'. Under these circumstances we think it was a question for the jury to say whether or not the defendant was negligent and whether the plaintiff was free from contributory negligence. It is well settled that an owner of property who rents apartments to different tenants is hound to exercise care in keeping the halls and stairways of the building leading to such apartments in a reasonably safe condition, and that for a failure to perform that duty he is liable to any one injured who was free from contributory negligence. Upon removing this carpet from the stairs, thus taking away the material that covered any nails or unevenness in the floor of the stairs which would cause any one using the stairs to fall, the defendant was bound to see to it that the stairs were placed in a reasonably safe condition for use without the carpet. That was the duty incumbent upon the defendant, not upon the plaintiff, and she had a right to rely upon the defendant performing that duty, and when she discovered that in consequence of these nails upon the steps of the .stairs the stairs were unsafe, and gave notice to the agent of the defendant to repair them, it then became the duty of the defendant, or his agent, acting for him, to make a proper examination of the premises and see to it that they were in a safe condition. lie could not absolve himself by requesting the plaintiff to perform that duty, and the fact that she did comply with his request, by removing such nails as she noticed, would not relieve him from liability for the unsafe condition of any of the steps upon which, she failed to notice an obstruction. Notice of the fact that nails, were on the stairs for a considerable period prior to the time of the accident was given to the defendant’s agent and no effort was made by him to examine and see whether the stairs were safe and the nails removed, and this presented a question for the jury to determine, whether or not the defendant had performed the duty the law imposed upon him. We think, therefore, that the question of the, (defendant’s negligence was properly left to the jury.

Whether the plaintiff was free from contributory negligence was also a question for the jury. She was engaged at the time in sweeping the stairs, performing a duty imposed upon her by her contract, with the defendant. As to her method of performing that duty it. was a question for ¡the jury to say whether she exercised the care of an ordinarily prudent person. We cannot say, as a matter of law, that where a person is required to sweep down a flight of stairs it is negligence to sweep them facing the steps, rather than in some other way. .She had known of the existence of these nails, and although under no legal obligation, she had endeavored to make the stairs safe by driving in or removing such nails as she could see or did see. The fact that, notwithstanding her efforts some nails escaped her attention, and her use of the stairs after a knowledge that nails had been there, were facts for the jury to consider upon the question of her negligence ; we think that their finding that she was free from contributory negligence was sustained by the evidence.

The case was submitted to the jury with a charge certainly as favorable to the defendant as the facts warranted. The verdict was a moderate one, and we see no reason to disturb it.

There were several exceptions to the refusal of the judge to charge requests presented by the defendant, but none of them have been relied upon before us and none of them appear to have been ¡substantial.

The judgment should, therefore, be affirmed, with costs.

Barrett, Rumsey and O’Brien, JJ., concurred; Van Brunt, P. J., dissented.