Hammer v. Vanderbilt, 19.

• Decision Date: 26 June 1936
• Docket Number: No. 19.,19.
• Citation: 185 A. 663
• Parties: HAMMER et al. v. VANDERBILT.
• Court: New Jersey Supreme Court

185 A. 663

HAMMER et al.

v. VANDERBILT.

No. 19.

Supreme Court of New Jersey.

June 26, 1936.

Appeal from Circuit Court, Essex County.

Action by Louis L. Hammer and another against Arthur T. Vanderbilt, etc. From a judgment of nonsuit, plaintiffs appeal.

Affirmed.

Morris Goldsmith and Harold H. Fisher, both of Newark, for appellants.

Cox & Walburg, of Newark (William H. D. Cox, of Newark, of counsel), for respondent.

Argued January Term, 1936, before BROGAN, C. J., and LLOYD and DONGES, JJ.

LLOYD, Justice.

The action was to recover damages for injuries sustained through tripping over a lift handle of a trapdoor placed even with the surface of the sidewalk to reach the cellar of premises owned by the defendant. There was a nonsuit below and the plaintiff appeals.

The action was based on alleged negligence in the owner. Originally there were three stores owned by the defendant and cellars beneath them were all reached by this entrance. Subsequently and before the accident the cellars were divided into three individual compartments, one for each store, and to the other two cellars an individual trapdoor was placed in the sidewalk. When this was done the tenant of the store facing the trapdoor here involved was given the key to the door, and any one who wanted to get into this cellar was obliged to do so by getting the key from him.

The accident in this case occurred on July 3, 1934, two years after the cellars were subdivided. There was nothing to show that the handle was not in proper condition when the change was made. The negligence alleged is that the handle had thereafter become rusty, and instead of dropping when released from the hand, it would stick up; that it did stick up on the occasion in question and that the plaintiff fell over it and received the injuries complained of.

We think it is fairly to be inferred that the handle was intended to drop down of its own weight when released. It seems to have been an inverted U-shaped piece of iron, and would naturally, if not held up by friction or otherwise, drop into the slot provided for it. Its failure to operate, as established in the proofs, might be sufficient to justify an inference of negligence, but was that negligence attributable to the owner? The appellant claims that it was and argues (1) that as a structure in the public highway it was the duty of the landlord to keep in order, and (2) that it was an entrance used in common by tenants occupying the three stores. The trial...