Millman v. U. S. Mortgage & Title Guar. Co. of N.J.

• Decision Date: 31 August 1938
• Docket Number: No. 9.,9.
• Parties: MILLMAN et al. v. UNITED STATES MORTGAGE & TITLE GUARANTY CO. OF NEW JERSEY.
• Court: New Jersey Supreme Court

1 A.2d 265

121 N.J.L. 28

MILLMAN et al.

v. UNITED STATES MORTGAGE & TITLE GUARANTY CO. OF NEW JERSEY.

No. 9.

Supreme Court of New Jersey.

Aug. 31, 1938.

Appeal from Circuit Court, Essex County.

Tort action by Fred Millman and wife against the United States Mortgage & Title Guaranty Company of New Jersey to recover for loss of services and for injuries sustained by the wife when she tripped and fell on a stairway in defendant's apartment house. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Argued May term, 1938, before BROGAN, C. J, and BODINE and HEHER, JJ.

Joseph C. Paul, of Newark (Harry E. Walburg and William H. D. Cox, both of Newark, of counsel), for appellant.

Leonard G. Brown, of Orange (Gerald T. Foley, of Newark, of counsel), for respondents.

HEHER, Justice.

This action sounds in tort. The gravamen of the complaint is negligence in the maintenance of a stairway for the common use of the tenants and occupants of a three-story apartment house in the City of Orange, possessed and controlled by defendant—(a) "improper in design and construction for the purpose intended and to which it was dedicated," and (b) "in a condition of disrepair dangerous to the safety of persons" lawfully making use thereof.

Plaintiffs were occupants of a second floor apartment under a tenancy contract with defendant; and, on June 6, 1935, between 9:30 and 10 o'clock in the morning, Margaret Millman suffered personal injuries in consequence of a fall while descending the stairway—the proximate result, so it is said, of defendant's negligence in the particulars mentioned. She testified that her heel caught on the metal nosing of the fifth step, and she thereby lost her footing and fell. Her husband testified that an examination of the step shortly after the accident disclosed "a screw about six inches from the edge of that particular molding on the step", and that "where the screw was it started to bend there and went up on an angle to almost three-quarters of an inch." Plaintiffs—the husband sued per quod—were given a verdict by the jury empanelled to try the issues; and defendant appeals from the consequent judgment.

First. The initial point made is that there was harmful error in the introduction from two witnesses called by plaintiffs of evidence relating to the condition of the stairway some two and a half years after the occurrence of the mishap, when they made their first examination of the premises. We find it to be insubstantial.

The objection was rested upon the grounds that such testimony was "entirely too remote," and there was "no proof of any change." One of these witnesses, Miller, was a builder of apartment and dwelling houses; the other, Golinski, was an architect and civil engineer. They were called primarily to give expert testimony as to general trade standards in the construction of apartment house staircases, and the conformance vel non of this particular stairway construction to the accepted standard as they conceived it, and not to establish a negligent state of disrepair. While their conclusions were based in part upon the inspection thus made of the premises, they were plainly rested upon the hypothesis that such was the condition at the time of the happening of the accident adverted to. And the foundation in this particular had been laid. Fred Millman had testified—in part on cross-examination—that, structurally, the stairway, especially as regards the tread upon which his wife lost her footing, at the time of the examination made by these witnesses, and as late as one week before the commencement of the trial, was the same as on the day of the accident, and for a year prior thereto. There had been no structural change in the meantime.

In this connection, it is pertinent to note that the structural defect found by these witnesses was the misplacement of an end screw employed to affix the flexible brass nosing to the tread—at a point five and three-quarters inches rather than a half inch from the end—evidenced by the raising of that end of the nosing. The setting of the screw one-half inch from the end was essential, so these witnesses testified, "to keep the end of the nosing firmly fastened to the tread"—the putting of the screw five and three-quarters inches from the end would cause "the nosing to spring up."

But appellant points out that the witnesses "testified specifically how far the brass nosing projected above the tread on the end;" and it is argued that this was inadmissible as showing the condition of the tread at the time the injury was sustained. It suffices to say as to this that the question itself was directed exclusively to the "structure of the nosing," and there was no motion to limit the testimony to the particular issue upon which it was adduced, or to have the jury instructed to disregard that which was irrelevant on the issue of negligent disrepair. Moreover, the trial judge, in an adequate presentation of the law applicable to the facts, made clear the distinction.

It is elementary that the condition of a place or thing at the time of an injury may always be evidenced by showing its condition before or after that time, provided no substantial change has occurred. The propriety of an inference in the individual case will depend on the likelihood of intervening circumstances as the true origin of the subsequent existence. 1 Wigmore on Evidence (2nd Ed.) sec. 283, 437.

Second. It is next urged that the trial judge erroneously overruled defendant's objection to a question propounded to the witness Golinski as to whether, between the time of his first inspection of the premises on December 29, 1937, and his second on the opening day of the trial, January 3, 1938, "any change in the end of the nosing" had been made. The answer was that, "at the edge of the nosing and near the rail * * * a big nail" had been "put in," and that "around the screw" there was "a rise of 3/16 of an inch," which one could still "kick" and "stumble on;" and the insistence is that this testimony contravened the general rule that evidence of subsequent changes, repairs, or precautions against recurrence of the mishap is inadmissible on the issue of negligence.

It is also assigned for error, on the same ground, that like testimony was adduced, over objection, on the cross-examination of witnesses called by defendant, and that two photographs of the stairway made on behalf of plaintiffs during the course of the trial, and therefore after the making of the changes adverted to, were introduced into evidence.

It is the established rule in this state that such evidence is not admissible "as showing negligence or as amounting to an admission of negligence." Perry v. Levy, 87 N.J.L. 670, 94 A. 569; Jerolamon v. Town of Belleville, 90 N.J.L. 206, 101 A. 244; Lombardi v. Yulinsky, 98 N.J.L. 332, 119 A. 873. The rationale of the rule is that the admission of such evidence on this particular issue necessarily proceeds on the erroneous assumption that the landowner, in taking measures to guard against a recurrence of the injury, evinces a consciousness of actionable negligence on his part, and disregards the teachings of experience that injuries are frequently the result of inevitable accident, and that the injured person is ofttimes guilty of contributory negligence. Such evidence is excluded on the ground that the supposed inference from the improvement of the injury-causing object is not the "plain and most probable one." Moreover, sound policy and reason dictate that the landowner fully discharging the duty of reasonable care imposed upon him by the law should not be under a penalty for improving the place or thing that had caused the injury, so as to obviate the risk of recurrence of the injury to others. 1 Wigmore...