Cahill v. Kleinberg
| Decision Date | 18 April 1922 |
| Citation | 135 N.E. 323,233 N.Y. 255 |
| Parties | CAHILL v. KLEINBERG. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Phoebe Cahill against Abraham Kleinberg. From a judgment of the First Appellate Division (194 App. Div. 962,185 N. Y. Supp. 920), affirming a judgment of the Trial Term entered upon a verdict, defendant appeals.
Reversed, and new trial granted.
Appeal from Supreme Court, Appellate Division, First Department.
E. C. Sherwood and Benjamin C. Loder, both of New York City, for appellant.
Joseph Levy, of New York City, for respondent.
Plaintiff was the janitress of a tenement house owned by the defendant. She claims that she fell upon a defective step in a stairway leading from the first floor to the basement in said house. This stairway consisted of steps or treads without risers, fitted at each end into a timber or plank. There was no balustrade or handrail upon the stairway, but on each side thereof was a solid wall. Plaintiff's evidence tended to show that for some time before the accident one of the stairs or treads was cracked from end to end, and that the defendant had been warned of this condition, and had promised to repair the same. Her evidence further tended to show that on the occasion in question, when she stepped upon this stair, it gave way, and that she fell down the stairway, receiving serious injuries, and also that if there had been a handrail fastened to the wall she would have been able to catch hold of it and save herself from the fall which she experienced.
While the issues involved in these claims were vigorously contested and the jury might well have found in opposition to plaintiff's story, we are inclined to think that there was evidence from which the jury might infer negligence upon the part of the defendant without contributory negligence upon the part of the plaintiff. At least, we shall assume this for the purposes of this discussion, and, if there were no other question than those suggested by the plaintiff's theory as thus far outlined, we should be inclined to affirm the judgment. There are, however, other questions which were injected into the case by the court and counsel, and in the disposition of which such errors were committed as, in our opinion, call for a new trial.
As we have stated, this stairway was bounded upon each side by a solid wall, and there were no banisters or handrails. Underthese circumstances the trial court charged that section 35 of the Tenement House Law (Cons. Laws, c. 61), relating to banisters, was applicable, and in substance that the jury might find the failure of the defendant to comply with that statute to be evidence of negligence which would support a verdict against him. We think that the statute in question was not applicable, and that therefore the instructions of the court were erroneous. Said section reads as follows:
We have therefore as the provision upon which plaintiff places her reliance one which requires for a stairway ‘proper banisters and railings,’ and plaintiff seeks to stretch and construe this language so that it will apply to and require a handrail fastened to a solid wall. That in our judgment is not the common or sensible meaning of the words. It is perfectly well understood that a banister and a railing mean a balustrade, consisting of balusters or supports upon which is placed a railing. It is the common construction which we see on the outer and open edge of a stairway, and it is clear that by the legislation in question the Legislature intended that such a barrier should be placed upon the outer edge of every stairway as a protection against persons falling over said outer edge and receiving injuries. The entire purpose of the provision and of such a...
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