App. Div.] Third Department, July, 1913. Hamilton's case and the other cases that follow in citation ut supra. Are there such circumstances in the case at bar? The character of such circumstances is not indicated in the opinion of the learned judge, but we have indication in the opinion in Terry's Case (supra), in that there are therein enumerated certain cases of exception. But none of such exceptional cases is analogous to the case at bar, save perhaps Gastel v. City of New York (194 N. Y. 15), which, however, was placed expressly within the exceptions because there was proof of other accidents, not as notice of the defect but as indication of the danger of the defect. But in the case at bar the plaintiff, when walking in the evening of the day, fell into the depression or hole, as did Butler, Terry and Beltz respectively. In Hamilton's case the accident happened in the daytime. The judgment and order must be reversed and a new trial must be granted, costs to abide the event. BURR, THOMAS, STAPLETON and PUTNAM, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event. GRACE F. HICKS, Appellant, v. ROY W. SMITH and ARTHUR C. JOHNSON, Respondents. Third Department, July 8, 1913. Landlord and tenant-negligence-injury to guest of tenant while descending stairway under construction - liability of landlord – when sub-contractor not liable. - Under normal conditions and independent of any covenant the landlord of an apartment house is bound to keep the common hallways and stairways in good repair, and where he makes repairs or alterations and permits the tenant to continue to occupy the house, he is held to a higher degree of care and is liable for injuries caused by negligence in making the repairs. These duties cannot be delegated. Thus, where a landlord of an apartment house, while having repairs made to the principal stairway, permitted his tenants to occupy the building without warning them not to use the common stairway and placed no lights therein and failed to order his contractors to do so, he may be found liable by a jury for injuries received by a guest of a tenant who in the night time fell down the partially completed stairway. Third Department, July, 1913. [Vol. 158. Where the plaintiff, a guest of a tenant, knew of the situation and that the hall and stairway were littered with lumber and tools, and were in an unfinished condition, her contributory negligence in using the stairway was for the jury, for she was not a trespasser although under the duty of exercising a greater degree of care than would be necessary if no repairs were being made. But, under the circumstances aforesaid, a sub-contractor employed in doing the carpenter work on the stairway is not liable. This is true although the principal contractor covenanted to be responsible for damages arising by reason of his repairs where the sub-contractor was not a party to the covenant. KELLOGG, J., dissented, with opinion; WoODWARD and HOWARD, JJ., dissented in part. APPEAL by the plaintiff, Grace F. Hicks, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Saratoga on the 25th day of June, 1912, upon a dismissal of the complaint by direction of the court at the close of plaintiff's case upon a trial before the court and a jury at the Saratoga Trial Term. Robert H. McCormic, for the appellant. William T. Moore, for the respondent Smith. Robert Frazier, for the respondent Johnson. HOWARD, J.: The defendant Smith is the owner of a building in Mechanicville, the second floor of which was arranged for the occupation of tenants, the defendant himself residing at the time of the accident just across a driveway from the building. Extensive alterations were being made and the front stairway leading from the street to the second story had been removed from the center to the southerly side of the building. The defendant Johnson was a sub-contractor doing the carpenter work. The principal contractor had agreed to become responsible for all acts and omissions of himself and the sub-contractors. There was a common hallway; this was littered with mortar, material and such other things as are usual at such times. During the alterations some of the tenants moved out; two tenants remained. There was a back winding stairway which had not been removed or molested and which was used by the App. Div.] Third Department, July, 1913. tenants while the front stairs were being moved. The common hallway was not lighted, although there was an electric light in one private hallway. At the time of the accident the outline of a person's body could be seen in the hallway but the floor of the landing could not be seen. A loose door frame had been left at the top of the front stairs leaning against the wall of the building and projecting out over the edge of the top step. The nosing or tread of the top step had not been put on so that the top of the riser was not covered. There were no lights, barricades or warnings in the common hallway, and the tenants had never been cautioned not to use the common hallway or the front stairway. Late in the afternoon of October sixteenth, the day of the accident, the plaintiff entered the appartments of Mrs. Floyd, one of the tenants, going up the front stairway and through the common hallway. Shortly after seven o'clock she started to leave. Mrs. Floyd, the tenant, and a Mrs. Baxter, another guest, accompanied her. The plaintiff walked slowly and carefully, so she says, and reached the front stairs and descended a few steps. Mrs. Baxter who was next behind the plaintiff stepped on something at the head of the stairs which gave way with her, her left heel caught in something, she stumbled and fell against the plaintiff and they both fell together to the bottom of the stairs and were injured. The plaintiff was nonsuited and is, accordingly, entitled in this court to the most favorable inferences that can reasonably be drawn from the evidence, including every fair deduction from the undisputed facts. (Volosko v. Interurban St. R. Co., 190 N. Y. 206; Gordon v. Ashley, 191 id. 186.) Assuming, therefore, all the facts proven and all the most favorable inferences that can reasonably be drawn from the evidence the question arises, are the defendants or either of them liable? Under normal conditions, and independent of any covenant binding him to do so, the landlord of an apartment house is bound to keep the common hallways and stairways in good repair. (McAdam Landl. & Ten. 1233; Dollard v. Roberts, 130 N. Y. 269; Sciolaro v. Asch, 198 id. 77.) When the landlord undertakes to make repairs or alterations in an apartment house and permits the same to be Third Department, July, 1913. [Vol. 158. occupied by his tenants while such repairs are going on, he is not released from responsibility, but is held to a higher degree of care, and is liable for the negligent way in which such repairs are made. (McAdam Landl. & Ten. 1254; Sciolaro v. Asch, 129 App. Div. 86.) The law imposes these duties upon the landlord and he cannot delegate them to others, either under normal conditions or while repairs are being made, so as to relieve himself from responsibility. "One who is personally bound to perform a duty cannot relieve himself from the burden of such obligation by any contract which he may make for its performance by another." (Shear. & Redf. Neg. [5th ed.] § 14; Sciolaro v. Asch, 198 N. Y. 77.) And the landlord owes the same duty of care to the guests of tenants as he does to tenants. (Hilsenbeck v. Guhring, 131 N. Y. 674.) Assuming all the facts and considering all the inferences arising from the evidence and applying these well-established rules of law, it seems clear that the landlord, the defendant Smith, was liable. He lived only a few feet away from the building, he permitted his tenants to continue to occupy the building while it was being altered, he had never warned them not to use the common hallway or the front stairway, he received rent, he placed no lights in the common hallway and made no arrangements with the contractors to place lights there, he erected no barricades, he permitted the hallway to be littered and obstructed, he did nothing personally, in short, to insure the safety of his tenants and their guests. Had the landlord been put to his defense, perhaps he would have been able to prove his freedom from negligence, but as the case now stands, his negligence is apparent. The defendant Johnson, the sub-contractor, apparently paid no attention to the tenants or in any manner considered their safety. He had been working in the building two weeks and in the common hallway, and it must be presumed that he knew the apartments were occupied. Notwithstanding this he left the hallway littered and obstructed. He erected no barricade, he placed no light or lantern on the obstacles, he posted no warning notices, he failed to observe the most simple and ordinary precautions- in fact he did nothing whatever to App. Div.] Third Department, July, 1913. guard against accidents. Under these circumstances there can be no doubt of his negligence. "The law imposes on a person engaged in the prosecution of any work an obligation to perform it in such a manner as not to endanger the lives or persons of others (29 Cyc. 425; Wittenberg v. Seitz, 8 App. Div. 439; Mullen v. St. John, 57 N. Y. 567.) It is the duty of any person making repairs in a common hallway or passageway or street or place where people are lawfully traveling, to take reasonable precautions against accidents. The defendant Johnson seeks to relieve himself from the consequences of this rule by pointing out that there were no contractual relations between himself and the plaintiff; but this duty to be careful does not grow out of a contractual relation; it arises from that basic and necessary regulation of civilization which forbids any person, because of his own convenience, to recklessly, heedlessly or carelessly injure another. Nobody is permitted by the law to create with impunity a stumbling block, a trap, a snare or a pitfall for the feet of those rightfully proceeding on their way. Therefore, as the case stood at the time of the nonsuit, Johnson was guilty of negligence. Concerning the question of the plaintiff's contributory negligence, that was clearly a question for the jury. It is true that the plaintiff knew the situation; the litter, the lumber, the mortar, the tools, the rubbish, the darkness, the unfinished condition; but she was not a trespasser. She had a right to be there. It was her duty, however, to be careful; in fact it was her duty to exercise much greater care than would be necessary in an ordinary hallway where no repairs were being made. But whether or not she was careful was a question for the jury. From the above reasoning it follows that the nonsuit was improper and that a new trial should be granted with costs. WOODWARD, J., concurred. SMITH, P. J.: I dissent from a reversal as to contractor Johnson. In the making of the repairs he necessarily obstructed the hallway to an extent and rendered the hallway unsafe for travel at night |