
    Thomas Dollard, Resp’t, v. Edward Roberts, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 1, 1891.)
    
    
      1. Landlord and tenant—Liability of landlord for injury to tenant.
    The ceiling of the common hallway of a tenement owned by defendant, was in a dangerous condition, of which he had notice. Plaintiff occupied the fourth floor, and his daughter was injured by the fall of plaster from such ceiling. Held, that it was the duty of defendant to keep the hallway in suitable repair, and the question of his negligence was properly submitted to the jury.
    2. Same—Contributory negligence.
    The fact that plaintiff and his daughter had been advised of the condition, and may have apprehended that the plaster might fall, did not necessarily charge them with contributory negligence in passing under it.
    3. Same—Damage—Loss, of service.
    The question as to the amount of damages for the loss of services of a daughter about thirteen years of age accustomed to housework is for the jury, and they may award prospective damages where they conclude that the damages will continue.
    Appeal from judgment entered on order of" the general term of the supreme court, in the first judicial department, affirming judgment entered on a verdict in favor of the plaintiff.
    This action was brought to recover damages for the loss of service of the plaintiff’s minor daughter resulting from a personal injury to her by the falling upon her of plaster from the ceiling of the hallway of a tenement house fronting on East One Hundred and Fourth street in the city of Hew York, and for the expense of medical attendance on account of such injury. The defendant was the owner of the building, and the occupants were his tenants. The plaintiff with his family occupied apartments on the top floor, and below that were two floors also occupied by families, and the next below, the ground floor, was used as a drug store. The hallway on the ground floor was common to all the occupants of the three floors above it, and was their only means of access to their apartments from the street, and of passage into it from them. On August 26, 1884, when passing along in this hallway, the plaintiff’s daughter was struck on the head by plaster falling from the ceiling, eleven feet in height, and in that manner received the injury by which the alleged disability was produced.
    
      Jacob F. Miller, for app’lt; Clifford A. H. Bartlett, for resp’t
    
      
       Affirming 28 St. Rep., 569.
    
   Bradley, J.

The alleged cause of action for loss of service and medical expenses was in the consequences of the injury to the plaintiff’s daughter; and the liability of the defendant was dependent upon the fact that the injury was solely attributable to his negligent failure to perform a duty assumed by him in his relation of landlord to the plaintiff as his tenant If the hallway had been part of the premises demised to the plaintiff there would have been no liability of the defendant to him. But the argument of the defendant’s counsel founded upon the proposition that such was the relation of the parties to that portion of the building does «not seem to be applicable to the present case. It was a four floor tenement house. The apartments on the second, third and fourth floors were separately rented for use by families as dwelling places. The plaintiff had rented and with his family occupied the fourth or top floor, other families occupied the second and third, and on the ground floor was a drug store, and a hallway common to the occupants of the floors above. It was the means provided for their passage way for ingress and egress into and from the building in going to and from the apartments from and into the street. It was essentially provided for that purpose, and necessarily common to the use of such occupants. Their right of passage through it was necessary to the availability for occupancy of the apartments rented by them. It was provided for their use in passing to and from the apartments demised to them, of which it constituted no part. It was, therefore, subject to their right of passage in it, under the .control of the defendant, who was the owner and their landlord. And upon him was the duty of exercising reasonable care in keeping the hallway in suitable repair and condition for the use in safety by his tenants of apartments on the floors above it Donohue v. Kendall, 18 J. & S., 386: 98 N. Y., 635; Palmer v. Dearing, 93 id., 7 ; Looney v. McLean, 129 Mass., 33 ; Lindsey v. Leighton 150 id., 285 ; Peil v. Reinhart, 127 N. Y., 381; 38 St. Rep., 913.

The evidence permitted the conclusion of negligence of the defendant For some time prior to the injury water had been leaking through the plastered ceiling at the place from which the plaster fell and struck the girl. And the plaintiff, his wife and the daughter testified that they had called the attention to the condition of the ceiling at that place of Mr. Hoyt, who collected the rents for the defendant and to whom the plaintiff was referred by the defendant when he sought to rent apartments in the building, and who also gave attention to the repairs made on it, and that Hoyt’s attention was also called to the danger that the plastering would fall from the place so affected, and he said it would be repaired. Although there was some controversy about the relation of Hoyt to the plaintiff in respect to the business about the building, the conclusion was warranted that his knowledge of this condition of this ceiling, as between the plaintiff and defendant, was such as to charge the latter with notice of it and with negligence for omission to repair it prior to the time of the injury, and it was a fair question for the jury whether the yielding and falling of the plaster was reasonably to be apprehended from the fact that water was leaking through and dropping from it as it did. The question, of the defendant’s negligence was properly submitted to the jury.

The fact that the plaintiff and his daughter had been advised of the condition, and may have apprehended that the plaster might fall from that place in the ceiling, did not necessarily charge them or the daughter with contributory negligence in passing under it at the time in question. While the duty was imposed upon her of using due care to avoid danger, it cannot, as matter of law, be said that she failed in that respect by not constantly having in mind the condition of the ceiling when passing through the hallway. This was her only passageway into the street, and from it in going to the apartment in which she dwelt. She had been out and was returning when the accident occurred. The impaired condition of the ceiling was not in the line of her vision as she proceeded through the hall, but to see it she would be required to look upward rather than forward.

And as was said in Palmer v. Dearing, 93 N. Y., 11: “It would be an extremely harsh rule which should require ” her “ who was called so often to pass this place to have kept her mind invariably fixed upon its character and to make her responsible for an omission to exercise incessant vigilance in passing it. The girl was not necessarily chargeable with negligence for having for the time being forgotten the condition of the ceiling or for having her thoughts or attention diverted from it at the time of the occurrence. Weed v. Ballston Spa., 76 N. Y., 329; Bassett v. Fish, 75 id., 303, 307.

On this review all questions of fact arising upon a conflict of evidence must be deemed disposed of by the verdict, and in its support the plaintiff is entitled to the benefit of the inferences legitimately derivable from the evidence.

There was no error in the charge, or refusal of the court to charge, on the subject of damages for loss of service. It appeared that the daughter, who was then between thirteen and fourteen years of age, was accustomed to perform services in doing housework. This question was for the jury, and the recovery of damages for loss of service is not in such cases limited to those sustained prior to the trial, but when the evidence justifies the conclusion that they will continue thereafter, prospective damages may be awarded. Drew v. Sixth Ave. R. R. Co., 26 N. Y., 49 ; Cuming v. Brooklyn City R. R. Co., 109 id., 95; 14 St. Rep., 788.

The case was fairly submitted to the jury, and there was no error in any of the rulings to which exception was taken. The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.  