Saunders v. Smith Realty Co.

• Decision Date: 03 March 1913
• Citation: 86 A. 404,84 N.J.L. 276
• Parties: SAUNDERS v. SMITH REALTY CO.
• Court: New Jersey Supreme Court

86 A. 404

84 N.J.L. 276

SAUNDERS

v. SMITH REALTY CO.

Court of Errors and Appeals of New Jersey.

March 3, 1913.

Error to Supreme Court.

Action by William Saunders, Jr., against the Smith Realty Company. Judgment for plaintiff, and defendant brings error. Reversed.

Humphreys & Sumner, of Paterson, for plaintiff in error.

Henry Marelli, of Paterson, for defendant in error.

GUMMERE, C. J. This suit was an action in tort brought by Saunders to recover damages for injuries received by him through the alleged negligence of the defendant.

The defendant, Smith Realty Company, is the owner of an office building in the city of Paterson, about 100 feet wide, 50 feet deep, and 4 stories high. Below the first floor of the building there was a cellar, in which were located the elevator shaft and elevator drum. Around this drum the elevator cable wound as the elevator was going up, and unwound as it was going down. The elevator ran through the building at about its center from the cellar to the fourth floor. The cellar was divided into two parts, the rear cellar being 2 1/2 feet lower than the front, and three steps, including the landing, led from the one to the other. The elevator shaft and drum were in the front cellar; the drum being in close proximity to the steps. The Paterson Textile Institute occupied one-half part of the fourth floor, and the plaintiff was in its employment. One of his duties was the sweeping up of the refuse from the floor and disposing of it. It was his custom to take it down on the elevator to the front cellar, carry it through to the back cellar, and leave it there. He received no instructions from his employer with relation to the disposition of the rubbish, other than that "he should take it down stairs," and testified that he left it in the back cellar, because, upon asking the janitor of the building where he should put it, that functionary took him through the passageway between the front and back cellar and showed him where he might leave it. Prior to the day on which the accident occurred to him which was the basis of this suit, he had been depositing the rubbish in the back cellar for about six months. On that day, while returning from the back cellar, he stumbled upon the steps and fell, his hand was caught between the elevator drum and the cable, and was so severely crushed that it became necessary to amputate several of his fingers. He was about 17 years old at the time of the accident.

The ground of defendant's liability, as averred in the declaration and attempted to be proved at the trial, was that the plaintiff was using this back cellar, and the way to it, by the invitation of the defendant, and that the latter was therefore under a duty to him to use reasonable care to keep it safe, and that this duty it failed to perform.

The proofs showed that not only the Textile Institute, but also some of the other tenants of the building, on some occasions, deposited refuse in the back cellar, and it was contended by counsel for plaintiff, and considered by the trial court, that this fact, taken in conjunction with the user by the Textile Institute, afforded some ground for concluding that the cellar was furnished by the defendants to its tenants for their common use for that purpose, and so brought the case within the rule laid down in Gillvon v. Reilly, 50 N. J. Law, 26,11 Atl. 481, and approved by this court in Siggins v. McGill, 72 N. J. Law, 263, 62 Atl. 411, 3 L. R. A. (N. S.) 316, 111 Am. St. Rep. 666, viz.: That where a building is let to different tenants, and a portion of it is held by the landlord for their common use, an obligation rests upon him to take reasonable care to have and maintain the way to that portion of the premises in a safe condition. We think the proofs submitted did not justify the application of this rule. There was no attempt to show that any of the tenants of defendant's building were using the cellar as of right, as an appurtenant to their respective leaseholds, or that such use inured in any way to the benefit of the defendant. So far as the Textile Institute is concerned, the proof is uncontradicted that their lease covered only the portion of the fourth floor occupied by them, and carried with it no right to the use of the cellar. The fact that the janitor...