Peil v. . Reinhart

*384 Bradley, J. The plaintiff as tenant of the defendant,, occupied some rooms in a tenament house of the latter, and had access to such rooms by means of a stairway common to the-occupants of the building. It appears by the evidence on her part that in descending the stairway in the evening of January 15,1888, the plaintiff fell and received the injuries complained, of; and that such fall was caused by the defective condition of the stair carpet; that the carpet had been in such condition for several months, and that the attention of the defendant-had in December previous been called to it by the plaintiff,, and he said he would remove it. There was some conflict in the evidence of the parties as to the latter fact, and as to the subject of the injury and its cause, but that there were and for considerable time had been holes m the stairway carpet was not, seriously questioned. It Avas the duty of the defendant to-use reasonable care to keep this stairway in repair and suitable, condition- for the safe passage of his tenants over it in then-way to and from their rooms; and for failure to do so he was chargeable Avith liability for injuries suffered by them Avitliouttheir fault while properly using it for such purposes. (Looney v. McLean, 129 Mass. 33 ; Lindsey v. Leighton, 150 id. 285; Donohue v. Kendall, 18 J. & S. 386 ; Neyer v. Miller, 19 id. 516.) The conclusion Avas warranted by the evidence that the condition of the carpet was such as to justify apprehension of danger of tripping in passing upon the stairway, and that at the time in question the plaintiff’s foot was caught in a hole-in the carpet, thus causing her fall and injury ; and that the defendant vus chargeable with' negligence for permitting it to remain in such condition, and with its consequences to the plaintiff, unless her negligence contributed to the injury which she sustained. It is urged that as she was cognizant of the-situation and the hall of the stairway was well lighted by a lamp, her fall was necessarily attributable to the fault or negligence of the plaintiff. Her previous knowledge of the condition of the passage-way on the stairs imposed upon her the duty to exercise a greater degree of care than otherwise may have been required of her in passing over them ; but she *385 was not required to desist from using the stairway by reason of the ruptures in the carpet. And while the question may have been a close one of fact, it could not properly be held as a matter of law that the plaintiff was guilty of contributory negligence, and, therefore, the motion for nonsuit was properly denied. (Palmer v. Dearing, 93 N. Y. 7; Looney v. McLean, 129 Mass. 33.) The question presented would have been quite different if the staircase had been part of the premises demised to the plantiff. Then the evidence may not have warranted a recovery by her, and many of the cases cited by the defendant’s counsel "would have been applicable; but the stairway was not under the control of any of the tenants, it was provided by the defendant for the common use of those having occasion to pass to and from the rooms which they occupied as his tenants. And the weight of the evidence bearing upon the question of negligence of the defendant'7 or of contributory negligence of the plaintiff, is not here for consideration'. The appeal to the General Term having been taken only from the judgment entered on the verdict, presented there for review questions of law only, dependent upon exceptions. To review in General Term questions of fact arising upon a trial of an action at law by jury, it is essential that a motion be made for a new trial at Circuit on the minutes, or at Special Term on a case, and that an appeal be taken from the order thereupon made as well as from the judgment, if one has been entered upon the verdict. (Wright v. Hunter, 46 N. Y. 409.) And in such case an order reversing that, denying a new trial and granting it, is not reviewable in this court. (Harris v. Burdett, 73 N. Y. 136.) There was no error in the reception of the evidence of the condition of the stair carpet the morning following the injury, as without proof to the contrary it was reasonable to assume that its then condition was substantially the same as at the time in question. The order should be reversed and the judgment entered on the verdict affirmed. All concur. Order reversed and judgment affirmed._______ ,