
    Mary E. Garrett, Respondent, v. Lowry Somerville, Appellant.
    
      Negligence—faiVwre to Iceep in repair a drain cover in the yard of a tenement house-
    
    In an action brought by one of the tenants in a tenement house against the landlord thereof to recover damages for personal injuries, it appeared that the back yard of the premises, which was used by all the tenants, had originally been properly fitted up, but that for a period of several years it had been permitted to deteriorate; that while the plaintiff was crossing the yard for the purpose of emptying an ashpan, she stepped on a perforated drain cover, and that in consequence of the fact that the supporting earth had sunk or washed away from the drain cover, it turned with her, throwing her down and injuring her.
    
      Held, that whether the defendant was guilty of negligence in not having discovered the condition of the cover of the drain pipe, and whether the plaintiff was free from contributory negligence, were questions of fact for the jury, and that a judgment entered upon a verdict in favor of the plaintiff should be affirmed.
    Appeal by the defendant, Lowry Somerville, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of December, 1903, upon the verdict of a jury for $4,750, and also from an order entered in said clerk’s office oh the 3d day of December, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      Smith Lent [Louis J. Somerville with him on the brief] for the appellant.
    
      Bruce R. Duncan, for the respondent.
   Per Curiam:

The defendant is the owner of a tenement house at 254 Gold street, Brooklyn, and has been such owner for about eleven years. The plaintiff, a woman sixty-four years of age, is one of his tenants, and had been such for three or four years at the time of the accident complained of here. On the 4th day of January, 1902, the plaintiff went into the back yard of the premises, which were retained in the possession of the defendant for the common use of his tenants, for the pui’pose of emptying her ash pail. In ci’ossing the yard she stepped upon the cover of a drainage pipe, and while her evidence upon this point is somewhat confusing, thei’e was enough to suppoi't the conclusion that the cover turned up at an angle by reason of the fact that the earth had gradually washed or sunk away from the top of the drainage tile, and had left the same without proper support, and she was thrown down, sustaining an injury to her ankle, which appeal’s to be of a permanent character. The jury found a verdict in favor of the plaintiff, and from the judgment entered upon such verdict the defendant appeals.

From the photographs in evidence, and from the testimony of witnesses, it is evident that this back yard, originally fitted up in a proper manner, had been permitted to deteriorate during a long series of years, dating back at least as long as the defendant’s ownership, and there was nothing in the appearance of the drain cover to indicate that it was out of order, or that it was more dangerous than other portions of the back yard. After the plaintiff’s injury it was discovered that the earth had receded from the drainage pipe, and .that the cover, about eight inches squax-e and perforated to permit the water to flow down into the drain, was lacking in support, so that one stepping upon one side of the same would be liable to be injured, and the question was submitted to the jury whether the defendant had exercised a proper degree of care in not discovering this defect. We think this question was properly for the jury, and the evidence supports the verdict. The jury has likewise found absence of negligence contributing to the accident, and we think the inference was properly deducible from the evidence.

An examination of the exceptions discloses none which should operate to overturn the judgment in this case.

The judgment and order appealed from should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.  