Schafer v. Mascola

KAUFMAN, P. J.

This is an appeal by the defendants from a judgment in favor of the plaintiff, rendered on a jury verdict. The complaint sought damages for personal injuries alleged to have been caused by the defendants’ negligence.

Thé defendants, husband and wife, are the owners of a two flat apartment house in Berkeley. Both flats are rented to tenants.. At the back of the property there is an outside wooden stairway from the ground to the upstairs flat. There is also a front stairway. On April 30, 1956, the plaintiff, a grocer, used the back stairway to deliver some groceries to the tenants of the upper flat, the Freemans. On the way down, plaintiff’s right foot went through the fourth step from the bottom, which “just dropped down out of sight.’’ The plaintiff, a 60-year-old man who weighed about 160 pounds, fell and sustained the injuries complained of in this action.

Plaintiff testified that he had been using the back stairway

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to deliver groceries to the Freemans every day for about six months. Every day he noticed that the step in question was “springy” but forgot about it. He mentioned it in the store several times and had mentioned it to Mrs. Freeman two or three weeks before the accident. He did not mention the step to anyone else as it was not his place to do so. Several photographs of the steps, taken by the plaintiff’s son were introduced in evidence as well as a portion of the step (removed by the plaintiff’s son when he took the photographs) which showed dry rot. Louis B. Ripp, the contractor hired by the defendants to repair the stairway after the accident, testified that in his opinion the stairway was not dangerous or unsafe, but was not fit for repair and needed replacing.

The defendant, Lewis Mascóla, testified that he had bought the building about two years before the accident. At that time the building was about 35-40 years old. Defendants made no inspection at the time of the purchase but relied on the realtor. Defendants’ subsequent inspections of the property, made about once or twice a month, were confined to the area around the house to see that it was kept clear of refuse, etc. Defendants had made an oral agreement with each of the tenants. Each tenant agreed to take care of the lawn and the premises in return for a reduction of $10 in the monthly rental of his flat. Defendants stated that the tenants agreed “to take care of everything around the house” and that this included repairs of the premises.