Flam v. Greenberg , 158 N.Y.S. 670 ( 1916 )

COHALAN, J.

This actioñ was brought to recover damages for personal injuries. In October, 1915, the plaintiff resided at No. 53 East Ninety-Ninth street in a house owned by the defendant. In the latter part of that month the defendant undertook to repair a certain door in the plaintiff’s apartment, and left it in an incomplete condition. At a time subsequent, and without warning, the door fell upon the plaintiff’s head, in consequence of which she sustained severe injuries. The proof went to show that the defendant had knowledge of the imperfect condition of the door, and the carelessness of the defendant’s agent in failing—after beginning the work—-to leave it fully repaired.

The defendant contended on the trial that the plaintiff had not sustained the burden of proving her freedom from contributory negligence; in a word, that she had no right to assume the hazard of remaining in the apartment with the knowledge that the door had been left in an improper condition, and if she did so remain, and was injured, she may not recover in this action. The court so held, and erroneously dismissed the complaint.

[1] It was not contributory negligence, as a matter of law, for the plaintiff to remain in her apartment, even though the danger of the door was not a hidden defect. Frank v. Simon, 109 App. Div. 38, 96 N. Y. Supp. 666; Phelps v. Kaufman, 152 App. Div. 457, 137 N. Y. Supp. 345. The court should have left, for the determination of the jury, the question whether or not the plaintiff was guilty of contributory negligence.

[2] The defendant undertook to make the repairs, and her agents were bound to use ordinary and reasonable care in the doing of the work, even if there was originally no obligation to make repairs in the apartment.

Judgment reversed, and new trial ordered, with $30 costs to the appellant to abide the event.

WHITAKER, J., concurs. GUY, J., concurs in the result.