McKeown v. King

• Decision Date: 19 November 1923
• Docket Number: No. 83.,83.
• Citation: 122 A. 753
• Parties: McKEOWN et al. v. KING et al.
• Court: New Jersey Supreme Court

122 A. 753

McKEOWN et al.

v. KING et al.

No. 83.

Court of Errors and Appeals of New Jersey.

Nov. 19, 1923.

(Syllabus by the Court.)

Appeal from Supreme Court.

Suit by Ellen McKeown and husband against Mary King and others, jointly or in the alternative. From a judgment for plaintiff, defendants Mary King and the J. C. McCrory Company appeal. Judgment as to the McCrory Company affirmed, and that as to defendant King reversed.

McDermott, Enright & Carpenter, of Jersey City, for appellant J. G. McCrory Co.

John W. Harding, of Paterson, and Louis A. Cowley, of Passaic, for appellant King.

Ranzenhofer & Ranzenhofer, of Passaic, and Filbert L. Rosenstein, of Paterson, for appellees.

KATZENBACH, J. Mrs. Mary King was the owner of premises in the city of Passaic in this state, known as Nos. 223, 225, and 227 Washington place. On May 12, 1916, she leased these premises to the J. G. McCrory Company (then known as the McCrory Stores Corporation) for a period of 10 years from the completion of a building then being constructed on said premises. During the month of March, 1918, Mrs. King constructed across the sidewalk in front of No. 223 Washington place, at the extreme end of the building, a drain, which connected with a leader extending to the roof of the building. The drain thus connected carried to the gutter the water from the roof. The drain was covered with a metal covering flush with the sidewalk. This cover was 10 1/2 inches in width, and about a quarter of an inch thick. It was set in a recess on each side of the drain.

On October 1, 1921, Mrs. Ellen McKeown was walking along Washington place about half past eight in the evening. As she was passing over this drain the cover was suddenly lifted up, and Mrs. McKeown was thrown to the ground with great force, breaking her leg. The sudden raising of the cover of the drain was caused by the covering having become loose and slipping over the gutter, and then being struck by a motor truck which was being drawn up to the curb at the time Mrs. McKeown was stepping on or over the drain.

To recover damages for her injuries, Mrs. McKeown commenced an action in the Supreme Court, in which Mr. McKeown joined to recover for the loss and expenses incurred by him as a result of the accident. The defendants were the owner and tenant, who were charged with negligence in permitting the cover to become loose and out of repair, and James Smith, Inc., the owner of the truck which struck the drain cover. This company was charged with having negligently driven the truck against the drain cover.

The case was tried at the Passaic circuit, and resulted in a verdict of no cause of action for the defendant, James Smith, Inc., and verdicts against Mrs. King, the owner, and the J. G. McCrory Company, the tenant, of $2,000 for Mrs. McKeown and $1,500 for Mr. McKeown. From the judgments entered on these verdicts Mrs. King and the J. G. McCrory Company have appealed.

The grounds of appeal for the reversal of those judgments advanced by the J. G. McCrory Company will first be considered. The first one argued is that the plaintiffs failed to prove any act of the tenant from which negligence could be inferred. The plaintiffs proved by two witnesses that the drain cover slipped away from the building towards and over the gutter. On several occasions these witnesses testified that they had pushed it back. This condition had existed for some months prior to the accident. The McCrory Company says that there is no evidence that it was apprised of this condition, and therefore no negligence could be imputed to it. It is the duty of a tenant of premises towards persons using them by invitation, express or implied, to use the care of an ordinarily prudent person to keep the premises in a reasonably safe condition. If the defective condition has existed for some time, the tenant is chargeable with notice of the condition, although having received no actual notice thereof. Schnatterer v. Bamberger, 81 N. J. Law, 558, 79 Atl. 324, 34 L. R. A. (N. S.) 1077.

The testimony offered by the plaintiff on the question of negligence created a jury question. The trial court properly left this question to the jury.

The second ground of appeal is that the trial judge should have directed a verdict in favor of the McCrory Company. This is argued under several points. The first point is that there is no evidence from which it could be found that the proximate cause of the accident was the tenant's negligence. This contention rests upon evidence given by witnesses that they had observed and examined the drain from time to time and observed no defect therein. Attention has been called to the evidence to the contrary. If the drain cover was loose and slipped over the sidewalk, then the question of proximate cause was for the jury, as the proximate cause might be determined to be the neglect of the McCrory Company in failing to make repairs to the drain and cover, which would prevent the cover from slipping towards and over the gutter, rather than the act of the driver of the truck in negligently striking the cover. We see no error in refusing to direct a verdict on this ground.

The second point argued under the second ground of appeal is that the owner was alone liable for the injuries received by the plaintiff. This argument is based upon the principle of law that for a nuisance arising from the structure of the building the owner is liable. This principle finds support in the case of Durant v. Palmer, 29 N. J. Law, 544. But this case, while it held that the owner was liable, likewise held that the tenant was liable. Moreover, the present action is not based upon a structural defect of the drain and cover. The complaint alleges the negligence, of which the defendants, landlord and tenant, are guilty, to be the permitting of the covering of the drain to become delapidated, loose, and out of order. The complaint does not allege a structural defect. This implies that the drain and cover were properly constructed. For permitting a sidewalk to become out of repair and thereby dangerous a tenant is responsible, as the tenant's duty is to use ordinary care to make the sidewalk reasonably safe.

The third point argued under the second ground of appeal is that the landlord, and not the tenant, was under obligation to maintain the drain covering under the terms of the lease, and hence no suit could be instituted by a third person for damages for injuries against the tenant. The lease provided as follows:

"It is understood that the Lessor will keep the exterior of the premises, including the roof and plate glass, in good order and repair during the term of this lease, and that the Lessee will keep the interior in good order and repair. * * *"

This provision of the lease fixes the obligations and duties between the landlord and tenant, but no provision of a lease can absolve a tenant as against a third person from the tenant's duty to maintain a sidewalk in front of the demised premises in a reasonably safe condition....