Schnatterer v. Bamberger

• Decision Date: 17 March 1911
• Parties: SCHNATTERER v. BAMBERGER et al.
• Court: New Jersey Supreme Court

79 A. 324

81 N.J.L. 558

SCHNATTERER

v. BAMBERGER et al.

Court of Errors and Appeals of New Jersey.

March 17, 1911.

Syllabus by the Court.

Error to Supreme Court.

Action by Pauline Schnatterer against Louis Bamberger and others. Judgment of nonsuit, and plaintiff brings error. Affirmed.

Abner Kalisch and Samuel Kalisch, Jr., for plaintiff in error.

Edward M. Colie, for defendants in error.

VREDENBURGH, J. Between the hours of 8 and 9 o'clock of Saturday night, April 24, 1909, the plaintiff, while shopping with a lady companion in the defendant's large department store in Newark, N. J., and proceeding down the stair or passageway leading from the first floor to the basement, stepped upon the third step from the top of the stair, tripped, and fell down the stairway, sustaining the injury for which she has brought suit.

The plaintiff claims her fall was caused by a loosened brass edging or nosing originally fastened by screws to the outer edge of the step for the protection of the wood from wear, and was. as the testimony of the plaintiff's brother (who saw it on the Monday following the accident) states, about one-quarter of an inch in thickness, by about one inch in width. The precise negligence imputed by the plaintiff to the defendant is not that it had originally improperly constructed this metal strip upon the step, but that since its construction the company had suffered it to become loosened from the step and raised to an extent sufficient to catch the heel of her shoe as she trod upon the step. In her testimony she thus particularizes the accident: That when she went down the stairs she did not, either before or at the time of her fall, notice the brass was loosened, but that when she and her companion returned upstairs about a half hour later, she examined the step, and found, to use her words, "this brass they had on the edge was loose on it, and it was kind of raised and my heel caught in it"; that the nosing piece was about one-eighth of an inch away from the step, and about the same distance above the level of it. Her companion (Miss Ingram) also testified that they went downstairs together, and she did not then notice what caused plaintiffs fall, but that when they came back upstairs she noticed the brass was loose. No witness says that this condition existed prior to the time of the occurrence of the accident, nor was there any evidence that the step was in prior disrepair in any respect.

The brief of the plaintiff in error concedes the fact to be, as the evidence also shows, that "this stairway was used every day by a large concourse of people." Doubtlessly the shoes upon the feet of countless numbers of persons were continually subjecting the brass nosing to wear and tear and of necessity at some time during such wear a weakening of its fastenings to the step would occur before they became loosened. In the present instance, for aught that appears to the contrary, it may readily have happened that the act of the plaintiff in placing her weight upon the metal nosing was the first force to produce this loosened condition; but, if not, the accident is no proof that the nosing piece had been in the condition testified to at a period so long before the accident as to charge the defendant with notice of it. There is nothing in the evidence to justify the inference that the company had at any time before the accident either knowledge or notice of such defect. Nor was there any proof that it had failed or neglected to make proper...