Hussey v. Long Dock R. Co.
| Decision Date | 20 October 1924 |
| Docket Number | Nos. 44, 45.,s. 44, 45. |
| Citation | 126 A. 314 |
| Parties | HUSSEY v. LONG DOCK R. CO. et al. (two cases). |
| Court | New Jersey Supreme Court |
Appeal from Supreme Court.
Two actions, one by James Hussey, by his next friend, John Hussey, against the Long Dock Railroad Company and another; the other by John Hussey against same defendants. From judgment for plaintiffs, defendants appeal. Affirmed.
Collins & Corbin, of Newark, for appellants.
Perkins & Drewen, of Jersey City, for respondents.
These actions were brought in the Supreme Court to recover damages for personal injuries received by James Hussey and occasioned by the falling of a fire escape attached to a six-family apartment house in Jersey City, the fall being claimed to be due to the negligence of the defendants. The Long Dock Railroad Company and the Erie Railroad Company leased to John Hussey the lower right apartment of 347 Baldwin avenue under a written lease, and Hussey with his family, of which James Hussey, a son, was one, occupied it at the time of the accident on August 20, 1923. Attached to the apartment house was a rear yard into which a hallway ran from the front of the building and through it on the ground floor. On the day in question, James Hussey was waiting in the yard for a friend with whom he was expecting to eat dinner. While standing under the fire escape, a portion of it became loosened from the wall and fell upon and injured him. The fire escape was fastened to the rear wall and was maintained by the defendants and intended for the general use of all the tenants in case of fire. It was shown that the wall was old and crumbled and that it was not calculated to withstand the strain of weight of the fire escape; that this condition was one of long standing and knowledge thereof fairly chargeable to the defendants. There was also some evidence that the faulty condition of the wall had actually been called to the defendants' attention.
The first two points argued are that there was no evidence of the defendants' negligence. These contentions cannot be maintained in view of the proofs just noted.
The third and sixth points are that the plaintiff James Hussey was a mere licensee, and that in consequence the only duty owing was to refrain from willful injury. We think the learned trial judge rightly held to the contrary. This contention is predicated upon the terms of the lease and the injured plaintiff's relation to the leased premises. The pertinent provisions of the lease are:
"Said lessee for himself, his heirs, executors, administrators, successors and assigns, hereby assume all risk of loss, damage, or injury by fire, accident, collision or otherwise, to property or person, on or about said leased premises, arising out of the condition or location of said leased premises, or the operation, maintenance or existence of the railroad operated by said lessor, its successors or assigns, or any of its appurtenances; and agrees to indemnify and save harmless said lessor, its successors and assigns, from all claims for any and all such loss, damage or injury, whether caused by the negligence of said lessor, its successors or assigns, or by the negligence of its or their servants, agents, or employees, or otherwise."
It must, of course, be recognized that the rights of the injured son could rise no higher than those of the father, the tenant. While conceding that whatever duty existed was owing equally to each, it was urgently insisted by the appellants that in using the yard as a waiting place for his friend James held the status of a licensee, inasmuch as the yard was only intended as a means of ingress and egress to the cellarway under the building. As before noted, the tenement had a rear yard into which a common passageway entered. It was there in keeping with the statute (P. L. 1904, p. 115, § 91) which reads:
"Behind every tenement house hereafter erected there shall be a yard extending across the entire width of the lot, and except upon a corner lot, at every point open from the ground to the sky unobstructed," etc.
It would be narrowing the purpose of the yard unduly to hold that it was limited in its use to a means of getting into and out of the cellar. Part of its purpose is to afford light and air to the tenants, and we think also to serve any other reasonable use to which yards in cities are ordinarily...
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