
    MARIA KAISER, Plaintiff, v. VALENTINE HIRTH, Defendant.
    Landlobd and Tenant.—Ownebs and Occupants of Tenement Houses.
    1. Liability for injuries sustained by visitor—when landlord or owner not liable.
    
    When there was a stairway leading from the first floor to the cellar, through which the occupants of the house descended to the various portions of the cellar assigned to them, such stairway being immediately behind the stairway leading to the upper part of the building, and the open space at its entrance being provided with a trap-door, which, when shut, covered it, jutting out about two inches into the hallway and rendered the aperture safe ; but there were no other safeguards about its entrance, and a visitor to one of the occupants, on attempting to go upstairs, placed one foot on the ascending stairway and the other in the space forming the entrance to the descending stairway, the same being open by reason of the trap-door not being shut, and thereby fell and sustained injuries.
    Before Monell, Curtis, and Sedgwick, JJ.
    
      Decided November 29, 1873.
    Held,
    1. The defendant being both landlord and owner, and also an occupant, was not liable, it not appearing either that there was any defect or negligence in the construction of the stairway and its covering, or that when properly used it did not suffice to protect persons using the hallway, and was not all that reasonable care and prudence could suggest, or that defendant left the trap-door open, or caused or allowed ■it to be left open.
    2. Such landlord and owner is not bound to protect his tenants and their visitors from the consequences of their careless acts in the course of occupancy.
    3. The tenants are each liable for their respective negligence.
    4. Pbesttuftion of Negligence.
    
      a. In such case there is no presumption of negligence against any particular occupant.
    Exceptions ordered to "be heard at General Term.
    The action is brought to recover damages for injuries sustained by falling through a trap-door down a stairway into the cellar of premises owned by the defendant, and erected and used by him as a tenement-house for many families, and which had been carelessly left open. The defendant claims that the injuries sustained by the plaintiff were caused by negligence on her part solely.
    The plaintiff went to the house to visit her son, who was one of the tenants residing on the premises, between eleven and twelve o’ clock in the forenoon. About fourteen feet from the front entrance into the main hall a circular staircase rises from the side of the right-hand wall. At the farther side of this staircase, and just beyond it in a recess on the same side of the hall, is a staircase descending to the cellar, which is used by the various tenants to descend to their respective portions of the cellar. This is covered by a trap-door which juts out about two inches into the hall, and was placed there to protect persons from' falling down the stairway. The hall is lighted, but obscurely, from the entrances at each extremity. The trap-door being left open, the plaintiff stepped with one foot upon the stairs and the other into the open space where the trap-door should have been if properly closed, and falling, sustained injuries. There was some conflict of testimony as to how dark the hall was at the time.
    
      Kurzman and Seaman attorneys, and of counsel for plaintiff, urged:
    The defendant, as owner, is liable for negligent construction of demised premises (Sher, and Red. on Neg. 56; Eakin v. Brown, 1 E. D. Smith, 44; Anderson v. Dickie, 1 Robt. 238). And also for nuisance erected or suffered by him (Sher. and Red. on Neg. 56 ; Congreve v. Smith, 18 N. Y. 79).
    II. The owner and landlord are held liable for damages caused by unprotected trap-doors in passage-ways (Sher. and Red. on Neg. 508-9 ; Freer v. Cameron, 4 Rich. [S. C.] L. Rep. 228; Chapman v. Rothwell, E. B. & E. 168; Karl V. Maillard, 3d Bosw. 591; Carman v. Eastern Co. R. R. Co., 4 Hurl. & Norm. 781; Pickard n. Smith, 10 Com. Bench, [R. S.] 470).
    III. . The landlord is liable when he lets a house so constructed as to be unfit for use of tenant or unsafe for habitation (Grodley v. Hagerty, 20 Penn. State, 387).
    IY. ¡Both landlord and tenant may be liable for use, if construction be negligent and unsafe (Sher, and Red. on 
      
      Neg. 56; Irwin v. Fowler, 5 Robt. 482; Anderson v. Dickie, 1 Robt. 238).
    Y. The cases relied on as important are those of Wharves, Railways, Factories, etc. Bnt there is no case to the effect that the owner of a dwelling or tenement-house is not liable to the visitor of his tenant for injuries caused by the owner’s gross negligence, in building or keeping the house, merely because the person injured did not enter the premises on business with, or by the invitation of, .the owner (Southcote v. Stanley, 1 Hurl. & Norm. 247; Godley v. Hagerty, 20 Penn. State, 387).
    The case of a tenement dwelling, promiscuously hired, is still stronger.
    In such houses, just as in hotels, the halls and stairways are, in a limited sense, highways; and the owner should be liable for negligence just as he may be for negligence about a coal-hole in the sidewalk.
    Neither the facts nor the reasoning of the court in Robbins v. Mount seem to be applicable to this case. The defendant, Mount, was held not responsible as owner, being only executor, with power to collect the rents, and the infant defendants, Cora and Myra Moffat were held not responsible as owners of the fee, because, as infants, they could not appoint an agent, nor be responsible for the negligence of any agent they might undertake to appoint. Besides this, the evidence did not connect either the infants or the executor with any negligence, and the negligence, though proved, was not fastened on any particular person.
    
      Peter Cook, attorney, and David Mc Adam, of counsel for defendant, urged:
    I. Negligence must be proved and will not be inferred, and the mere fact of an injury having been suffered is not enough to establish a charge of negligence against a defendant (Sherman and Redfield on Negligence, § 5; Curran v. Warren Chemical Co., 36 N. Y. 153 ; Ferry v. The Mayor, 8 Bosw. 504; 4 Abb. N. S. 273). The defendant was not Hable because he occupied part of the house in question (Moore v. Goedel, 34 N. Y. 527 ; aff. 7 Bosw. 591).
    II. As owner, the defendant is not liable; (Robbins v. Mount, 4 Robertson, at pp. 565, 566 ; Eakin v. Brown, 1 E. D. Smith, 36).
    
      (b.) The tenant is prima fade liable for all such accidents ; (Eakin v. Brown, 1 E. D. Smith, 36 ; Mayor v. Corlies, 2 Sandf. 301).
    (c.) There is no difference as to liability between the owner of a tenement-house and any other (Doupe v. Genin, 45 N. Y. 119).
    
      (d.) As owner, the defennant owed the plaintiff no duty (Cheetham v. Hampson, 4 T. R. 318 ; Bolch v. Smith, 7 Hurl. & Nor. 736 ; Southcote v. Stanley, 1 Hurl. & Nor. 249; Robbins v. Jones, 15 Com. Bench N. S. 240; Colles v. Seldon, 3 Law C. P. R. 495 ; Sullivan v. Waters, 14 Jurist C. L. R. 466 ; Chantlier v. Robinson, 4 W. H. & G. 170 ; Hounsel v. Smyth, 7 Com. Bench N. S. 731 ; Gauntrels v. Egertoy, Law. Rep. 2 C. P. 370 ; 25 L. J. Ex. 339; O’Brien v. Capwell, 59 Barb. 497, and cases cited; Sherman & Redfield on Negligence, §§ 503, 504; Robbins Jones, 15 C. B. N. S. 221, 240).
    III. If the plaintiff and the one that left the doorway open are not the persons who alone caused the injury complained of, then it is a case of unavoidable accident, for which the law holds no one responsible (Dygert v. Bradley, 8 Wend. 469 ; Bullock v. Balcock, 3 Wend. 391; Center v. Finney, 17 Barb. 94).
    IY. The nonsuit was properly granted, for upon the uncontroverted facts the question of negligence was one of law to be decided by the court, and not one of fact to be submitted to the jury (Phillips v. Rens. & Lar. R. R. Co. 49 N. Y. 177; Gonzales v. N. Y. & H. R. R. Co., 38 N. Y. 440; Wilcox v. Rome & W. R. R. Co., 39 N. Y. 365; Johnson v. Hudson R. R. R. Co., 30 N. Y. 73 ; 34 N. Y. 430; 39 N. Y. 61 ; 34 How. 97: 3 Duer. 59 ; 3 Robts. 35). And this rule has been applied to cases not unlike the present, for example: (Toomey v. London, Brighton & S. R. R. Co., 3 Com. B. N. S. 146; Crafter v. Metropolitan Railway Co., Law Rep. C. P. vol. 1, 300; Cotton v. Wood, 98 Eng. Com. Law 566; 8 C. B., N. S. 573).
   By the Court.—Curtis, J.

Although, on the trial, this stairway was described as a well-hole by one of the witnesses, and spoken of as a hatchway, yet when covered with a trap-door such description cannot be considered as technically correct. The evidence in the case fails to show any defect or negligence in its construction, or that when properly used it does not suffice to protect persons having occasion to use the hallway, and to be all that reasonable care and prudence can suggest.

The carelessness and negligence of tenants may convert almost any part or fixture of a building into a source of damage or injury to some one. It is difficult to conceive of means that will prevent the consequences of their leaving doors open, or gas or water flowing in premises that may be occupied by them ; but for their negligent acts in these respects the law holds them responsible.

In the present case there is no evidence that the defendant, who occupied a part of the building, or any tenant of his, left the trap-door open. They are each liable for their respective negligence, and there can be no presumption of negligence against any particular occupant (Moore v. Goedel, 34 N. Y. R. 537). The testimony fails entirely to show who left the trap-door open, or that the defendant allowed it to be open. It does not appear that it was constructed without proper care, or that its careful use would be productive of injury to any one. Such being .the case, it would be unjust to hold the owner of the premises responsible for the negligent use of it. He discharged his duty to his tenants and their visitors when he made this provision for their protection, which was safe unless carelessly used, and he is not hound to protect them from the consequences of their careless acts in the course of occupancy. It being entirely clear that it was safe if used with care, and there being no proof that the defendant left it open, or caused or allowed it to be left open, the court properly dismissed the complaint.

The case of Robbins v. Mount (4 Robt. 565, 566), is directly in point» and the court there held precisely this view in respect to the liability of the owners of premises for the negligence of their tenants.

The exceptions to the decision of the court, dismissing the complaint, are overruled, and judgment is ordered for the defendant on the verdict, with costs.  