Mendelsohn v. Van Herick

KNIGHT, J.

While inspecting an apartment house nearing completion, at the invitation of the owner and in contemplation of renting an apartment therein, plaintiff fell from a stairway and was injured, as a result of which she instituted this action for damages against the owner and upon trial before the court sitting without a jury was awarded judgment for the sum of $3,500, from which the defendant has taken this appeal.

At the time the accident happened the building was ninety-five per cent finished; and the defendant owner being desirous of having the apartments rented as soon as they were ready for occupancy, for some six weeks prior to the accident had been inviting and permitting people to examine them. Signs were displayed at the front entrance reading “open for inspection” and “reservations now being made”, etc.; and prior to the date on which plaintiff was injured approximately one hundred prospective tenants had visited the premises, and seven or eight apartments had been leased. Plaintiff resided with her married daughter a short distance from the apartment house and during its construction passed it frequently. About 4 o’clock in the afternoon, during the month of March, in response to a special invitation extended by the leasing manager who was present on the premises, plaintiff, accompanied by her daughter, called at the building for the purposes mentioned, entered through the main door, crossed the lobby and started to ascend the concrete stairway, which was built in three flights, winding to the left, the second and third flights being constructed at right angles with the one immediately below, with platforms at the top of the first and second flights. The right-hand side of the stairway abutted against the walls of the building, but the left side was unprotected, the balustrade not then having

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been installed. The day preceding plaintiff’s visit the plasterers had been at work on the walls adjacent to and the ceiling above the stairway, and the refuse left by them on the stairway had not been removed. Part of it consisted of a piece of heavy scaffolding, about six feet long, which was not attached or fastened in any manner to the stairway or the building, but which had been left standing on the stairway in a vertical position, with one end resting on the tread of the stairway about a foot from the wall and the other end against the wall; furthermore the light on the stairway which came through the main doorway was more or less obscured by boards and scaffolding which had not then been removed; and defendant’s building superintendent was aware of all these existing conditions at the time plaintiff called to visit the premises. As plaintiff reached the fourth tread of the second flight of stairs she stepped on some small, hard object which she did not see, and which later proved to be a piece of plaster or cement, and she was thrown thereby against the loose timber on the stairway, which fell upon and precipitated her over the unprotected side of the stairway to the concrete floor below, a distance of eight or ten feet; and besides suffering severe contusions of the back and legs she sustained a fracture of the body of the second lumbar vertebra, which confined her to her bed for approximately five and a half months.