Meyers v. Birch

• Decision Date: 26 December 1896
• Citation: 59 N.J.L. 238,36 A. 95
• Parties: MEYERS et ux. v. BIRCH.
• Court: New Jersey Supreme Court

36 A. 95

59 N.J.L. 238

MEYERS et ux.

v. BIRCH.

Court of Errors and Appeals of New Jersey.

Dec. 26, 1896.

(Syllabus by the Court.)

Error to circuit court, Hudson county; before Justice Lippincott.

Action by Nathan Meyers and Wife against Edmund T. Birch. Judgment for defendant, and plaintiffs bring error. Reversed.

Warren Dixon, for plaintiffs in error.

Erwin & Keller, for defendant in error.

GUMMERE, J. The writ of error in this case brings up for review a judgment of the Hudson circuit court in favor of Birch, the defendant, upon the verdict of a jury directed by the trial court against the plaintiffs. The suit was brought to recover damages, for injuries received by Adeline Meyers, out of the plaintiffs, caused by a fall through a grating covering a cellar in front of premises owned by the defendant in the city of Jersey City, the grating being within the line of the public street. The premises in question had been leased to one Siebold, and consisted of a store, which was divided into two compartments, but which had only a single entrance. One of the compartments was occupied by the tenant, Siebold, and the other by Nathan Meyers, the husband of Adeline, to whom it had been sublet. The case made by the plaintiffs was that the cellar, which was covered by the grating, did not pass under the lease to Siebold, but remained in the owner of the premises, and was occupied by him; that the grating was defective; and that, as Mrs. Meyers walked across it, in coming from the entrance to the store, it gave way with her, and precipitated her into the cellar, thereby inflicting the injuries for which this suit was brought The case of the defendant was that there was no defect in the grating, and that, even if it was true that the grating was not sound, he was not liable, because the cellar, over which the grating was, had passed with the rest of the premises under the lease held by Siebold, and that it was the duty of the latter, or of the plaintiff Nathan Meyers, who was his subtenant, and not of the defendant, to keep it in repair, because, by the terms of the lease, the lessee was bound to make all repairs which the premises required. The plaintiffs insists that, in this condition of the case, there was enough to require its submission to the jury, and that the trial court erred in taking it from them.

The rule is well settled that "a jury should be controlled in its verdict by a peremptory instruction only where the testimony is of such a conclusive character as would compel the court, in the exercise of a sound legal discretion, to set aside a verdict if one were returned in...