x999-1" type="majority">

The opinion of the court was delivered by

Minturn, J.

The plaintiff sustained a fractured leg by falling down stairs in the tenement-house wherein she resided, at No. 78-80 Prince street, in Newark. Several families occupied apartments in the house, and the dark stairs upon which the plaintiff fell was in common use hv the various tenants, as the only means of ingress and egress to and from their respective apartments.

It was in evidence that the plaintiff’s skirt caught in a nail on the step of the stairs where the iron nosing had broken off, leaving nails sticking out. There was testimony that the step was thus left in a rather dilapidated condition for some months prior to this accident, and that the defendant had exepress notice of the condition, hut ignored it.

In this situation we have all the factual elements which impose liability upon a landlord, under the adjudications in *48 this court and the Court of Errors and Appeals. Gillvon v. Reilly, 50 N. J. L. 26; Siggins v. McGill, 72 Id. 263; Charney v. Cohen, 94 Id. 381; Schnatterer v. Bamberger, 81 Id. 558.

The contention urged by defendant that the plaintiff assumed the risks of using a staiiAA'ay Avhich she must have knoAvn from continued usage to have been dangerous contains three obvious legal illusions AAdrich Avould prevent its acceptance, as a logical solution of the plaintiff’s difficulty. The first is a failure to observe that the laAv in such a situation imposes the absolute duty of exercising due care upon the landlord, particularly after he has had notice of an obvious defect in the eotínnon passages and stainvays. Tlie second is based upon the theory that the landlord may assume a laissez faire attitude, and sleep, and speculate in perfect security, upon the contributory risks his tenants incur ex necessitate in the use of the leased premises; and the third and final assumption is based upon the theory that the tenant rather than use the stairs, and assume the risk, may confine herself ex necessitate to her apartments, in comforting meditation upon the benignant solicitude of the landlord, and the unequal distribution of the joys and privations of human existence. Thus one of the tenants testified that he heard his Avife, about íavo months before the accident, tell the landlord. “Why don’t you fix the stairs? You see people fall doAvn!” and he said, “Let them fall. Let them all get killed!” My Avife says, “I Avon’t pay the rent before 3rou fix it,” and he said, “You Avill pay.”

In all the cases cited by the appellant upon this subject there is conspicuously lacking this element of complacent platonic restfulness and Avatchful Avaiting of the landlord for the inevitable to happen, as an essential part of the guid pro quo.

The facts, of course, Avere in controversy, and the question of fact presented b37 testimony of this character, involving negligence and contributory negligence, under the Avell-settled rule of laAv Avas properly left to the jur3r. Charney v. Cohen, supra.

*49 Our examination of the requests to charge satisfies us that in substance they were effectually charged; and our examination of the charge leads us to conclude that it comprehends a correct statement of the law upon the issue involved.

The judgment will therefore be affirmed.

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