
    Bridget McCabe, Appellant, v. Frederick H. Kastens, Respondent.
    (New York Common Pleas — General Term,.
    February, 1895.)
    The question of the negligence of a landlord is to be determined by what was known before and at the time of the accident, and not by whát could be inferred from the accident itself.
    In an action for injuries sustained by a tenant in tripping upon a mat in the common hallway, plaintiff testified that the mat had no holes in it, but was old and ragged at one end,but she did not think it was dangerous. EM, that the fact that she did hot consider it dangerous, although she passed over it constantly, was strong evidence that the landlord with ordinary caution could not have discovered its dangerous condition; that the jury would, therefore, have no right to infer that it had been dangerous for such á length of time as to give the landlord notice of its •condition, and that a dismissal of the complaint was proper. .
    
      McCape v. Kastens, 10 Misc. Rep. 42, affirmed. ■
    Appeal from a judgment of the General Term of the City Court, affirming a judgment entered upon the'dismissal of the complaint.
    
      James 'A. O' Gorman, for appellant.
    
      Holm ds Tabor, for respondent.
   Bookstaver, J.

This action was brought by a tenant to recover damages of her landlord for injuries sustained in consequence of tripping on a mat placed by him in the rear hall of his house, which was practically a tenement, as it was occupied by a number of different families, all. of whom had! access to the hallways in common. From the testimony it appears that there were three mats in that hall; that sometime before the janitress of the building had tripped on one and sustained an injury, and that in consequence she complained to the landlord and asked him for new mats to cover the hall; he furnished one new one which was placed in front, and the one taken from the front was placed in the rear. This mat the plaintiff herself testified had no holes in it, but was old and ragged at one end, but that she did not think it was dangerous / in fact, the chief objection to the old mats before plaintiff’s accident was, as she herself testified, that they were dirty. Another of plaintiff’s witnesses testified that he had been living in the same premises for ten years, and for four had had charge of the house; that on the day of the accident he saw the mat in question in the hallway; that he had passed over it in going in and out of the hall, and there was no hole in it. It is a well-established rule of law that before a landlord can be held liable in a case of this character the burden rests upon the plaintiff to establish by affirmative evidence the landlord’s negligence; to do this it is necessary for the plaintiff to establish two facts: (1) That the mat was defective and dangerous, and (2) that the landlord had actual notice of its condition, or that it had been in such dangerous condition for such a length of time as to permit the jury to infer notice. In Alperin v. Earle, 55 Hun, 212, it is said : “ The landlord is responsible for injuries to his tenants resulting from the dangerous condition of those parts of the building which he reserves for the common use, and over which he retains control, but only when he has been guilty of actual negligence with regard thereto. To bring him within this rule it must appear, as was said in Henkel v. Murr, 31 Hun, 30, that with some notice of the condition of things, such as an unreasonable •omission to ascertain the condition, he had.failed to make the necessary repairs or changes called for by the condition or exigency.” We think that the plaintiff failed to establish ■either of these essential facts. The plaintiff herself testified, that she did not regard the mat as dangerous, although she was constantly passing over it, and had a far better opportunity for knowing its condition than the landlord could possibly have had. Uhlig, plaintiff’s witness, also passed over the mat daily, and did not think it dangerous. It would be unreasonable and illogical to contend that under such circumstances the landlord was bound to know that the mat was in. fact dangerous. The landlord in such cases -is not an insurer of his tenants against all loss or injury, but is required to exercise only reasonable care and caution, and can be required to exercise no more caution on his part than the tenants should exercise on theirs. While it is quite true that if the plaintiff knew of the dangerous condition of the mat such knowledge did not impose upon-her the obligation of refraining from walking over it in a careful manner, yet the fact that she did not regard it as dangerous herself, although using it constantly, is very strong evidence that the landlord in the exercise of ordinary caution would not have discovered its dangerous condition, and if it was not discoverable by ordinary care, it follows as a matter of necessity that the jury would have no right to infer ■.that it had been dangerous for such a length of time as to ¿give him notice of its dangerous condition, and there is no ■proof of actual notice in the case. The question of defendant’s "negligence was to be determined by what was known before .and at the time of the accident, and not what could be inferred "from the accident itself. Dougan v. Champlain Transportation Company, 56 N. Y. 1.

The trial judge, therefore, was entirely justified in dismiss:ing the complaint as he did, and the judgment of the General Term of the City Court, affirming such judgment, was' correct, and should be affirmed, with costs.

Bischoff and Giegerich, JJ., concur.

.Judgment affirmed, with costs.  