Wasson v. Pettit

• Decision Date: 01 November 1889
• Citation: 117 N.Y. 118,22 N.E. 566
• Parties: WASSON v. PETTIT.
• Court: New York Court of Appeals Court of Appeals

117 N.Y. 118

22 N.E. 566

WASSON

v.PETTIT.¹

Court of Appeals of New York.

Nov. 1, 1889.

Appeal from supreme court, general term, first department.

This action was brought by Elias Wasson against John Pettit to recover for personal injuries sustained by the plaintiff by falling down a flight of steps leading from the sidewalk to the cellar of a building owned by defendant. The jury found for the plaintiff, and judgment was entered accordingly. This judgment was affirmed by the general term, and defendant appeals. The facts appear in the opinion.

RUGER, C. J., and DANFORTH, J., dissenting.

Treadwell Cleveland, for appellant.

Lewis J. Conlan, for respondent.

GRAY, J.

The defendant in this action has appealed from a judgment, entered upon the verdict of a jury, by which he is held in damages for injuries occasioned to the plaintiff by falling down a flight of steps leading from the sidewalk of the street into the cellar-way of a building. The complaint charged that these injuries were caused solely through the negligence of the defendant in permitting that part of his premises to remain unprotected, and in an unsafe and dangerous condition. The proof established the following state of facts: The plaintiff was walking by the defendant's building on the north side of Thirteenth street, between Ninth avenue and Hudson street, in the city of New York, on a Sunday morning in June, 1884. When opposite to the flight of steps, he stepped to one side to pass by some men who were standing at that point of the sidewalk. He attempted to pass between them and the building, and in so doing fell down the steps. His eye-sight was defective, and that may have accounted for his failure to observe the cellar opening; but whether it was or not is immaterial, in the view I take of the case. The building had come into the defendant's possession within the previous six months, and covered the block. Around it was an open area separating it from the street. The steps in question led from the sidewalk of the street into this area, and so into the cellar of the building. This cellar had been leased by the defendant, and the tenant was in possession and actual occupation. The lease was in writing, and gave no right to defendant to use that part of the premises, or the steps in question. The building had been undergoing repairs and alterations at the defendant's hands; but they had been completed in this particular part, except that certain wooden doors to guard the entrance by this flight of steps had not yet been completed and put up. Temporarily, the defendant had furnished and put over the opening an iron grating, weighing some 150 pounds, which extended from the upper step of the flight to the wall of the building, at an angle. In order to gain access to the tenant's cellar, this iron-work had to be lifted up and removed. The flight of steps was an ordinary one, and had been there for years. A watchman was employed by the defendant to watch the outside of his building, and he was examined in behalf of the plaintiff. His instructions were, among other things, to see that this iron cover to the cellar-way was kept in place. On the morning in question it had been securely in place; but while the watchman was on his round, and before his round was completed, some one removed it, and it was out of place when the plaintiff came by. This flight of steps extended into the sidewalk, and beyond the railing of the area, about 18 inches; but this feature is not to be considered as involving any particular consequences. The complaint did not charge the defendant with maintaining a nuisance, and the trial did not proceed upon any such theory of liability. In fact, the learned judge who presided at the trial charged the jury that the plaintiff had chosen to base his action upon the charge of direct negligence, and not upon that of maintaining or continuing a public nuisance, and he left it to the jury to say whether the accident was caused exclusively by the negligence of the defendant, or by those who were acting for him. In this the plaintiff acquiesced; and he is in no position to argue now, in support of his judgment, on the theory that the defendant was maintaining a nuisance. If that question was not raised at the trial, it certainly is no time to present it when the case is heard here upon appeal. The judgment must stand upon the case as it went to the jury upon the trial of the issue.

The question which now presents itself is raised by the exception of the defendant to the denial of his motion for a nonsuit at the close of the...