Charney v. Cohen

• Decision Date: 11 June 1920
• Parties: CHARNEY v. COHEN.
• Court: New Jersey Supreme Court

110 A. 698

CHARNEY

v. COHEN.

Supreme Court of New Jersey.

June 11, 1920.

Action by Zelda Charney against Jacob Cohen. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued February term, 1920, before the CHIEF JUSTICE and MINTURN and BLACK, JJ.

Benjamin L. Stein, of Paterson, and Max Schleimer, of New York City, for appellant.

William B. Gourley, of Paterson, for appellee.

MINTURN, J. Isadore Charney, the deceased husband of the plaintiff, who was a tenant in the apartment house of the defendant, in the city of Paterson, while leaning against the guard rail on the back porch of the second story of the apartment, fell to the ground and was killed, by the giving way of the guard rail, while he was engaged in the act of sweeping away the accumulated snow on the balcony, preparatory to the plaintiff's going out to hang up her washing upon a pulley clothesline, which was attached to the supporting post or pillar of the guard rail, the hook in which was provided for the purpose by defendant.

The balcony was in general use by the tenants for household purposes, and for ingress and egress. Upon a prior occasion a son of deceased was leaning against another section of the guard rail, when it gave way without injury to any one, and defendant was notified of the fact, and he thereafter sent a man to repair the damage. An examination of the rail after the accident in question disclosed that two nails holding the rail were rusted, and that the rail itself had rotted at the point where it parted from the post. It was inferable from the entire testimony that the rail was in the language of an inspecting police officer "in a very weak condition,"

The jury found for the plaintiff, upon an instruction by the trial court concerning defendant's liability based upon the doctrine enunciated in Gillvon v. Reilly, 50 N. J. Law, 26, 11 Atl. 481, and Buda v. Dzuretzko, 87 N. J. Law, 34, 93 Atl. 83; Siggins v. McGill, 72 N. J. Law, 263, 62 Atl. 411, 3 L. R. A. (N. S.) 316, 111 Am. St. Rep. 666; Timlan v. Dilworth, 76 N. J. Law, 568, 71 Atl. 33, and other cases of like tenor in this jurisdiction, declarative of the respective rights and liabilities of landlords and tenants in tenement or apartment houses, where control is retained by the landlord of the general entrances and passageways of the tenements.

This appeal is predicated upon the theory that the court shall have nonsuited or directed a verdict upon the plaintiff's presentation of the case, as well as upon the ultimate record upon which it went to the jury. We think upon the rationale of the cases to which we have adverted, establishing the principle of liability or nonliability the question of whether the landlord retained control of the balcony, and rail, for the general use of the tenants, and whether he used due care under the facts to keep it reasonably safe, were jury questions, where the testimony, as in the case at bar, was of a controverted character. It is only where there are no facts in dispute for a jury to consider, or where the testimony evinces the...