(dissenting):
This action was brought by the plaintiff, a tenant of premises Ho. 72 West Third street, against the defendant, as landlord of the premises, to recover damages for injuries claimed to have been sustained by the plaintiff by falling down part of a flight of stairs in said building, it being claimed that said fall was caused by the improper condition of the said stairs.
It appears from the evidence that for some time previously there had been upon the stairs a carpet which had been removed; and that the plaintiff had been accustomed to sweep and scrub these stairs every Friday, and having noticed a large number of nails sticking up, she spoke to the agent in regard to them, who told her to drive them in; and that she took a hammer and drove in all the nails she could find. On the Friday preceding this accident the plaintiff testified that she saw some nails sticking up which were dangerous and that she drove those nails in, but that she did not see the nail over which she tripped and fell. The plaintiff further testified: Q. Did you drive in more than one nail ? A. Yes, sir. Q. All you could find ? A. Yes, sir. When I washed the floor or walls, when there was one out I knocked it in or I would spoil my fingers. Q. As a matter of fact, you drove in all the nails that were sticking out, *272that you could see? A. That I could see. * * * Q. What part of the stairs was it you drove the nails in ? A. In all parts.”
The witness subsequently stated that she did not scrub that flight of stairs, but only swept it; but that whenever she noticed a nail she drove it in and was very careful about it.
Upon this state of the evidence a motion was made to dismiss the complaint, which was denied.
It seems to me that this was error. If the plaintiff in sweeping down the stairs the week before did not discover the particular cause of the accident, it is difficult to see how the landlord coidd be charged with notice thereof. It is true that she testifies to the defects in the stairs and to nails sticking up, but she also testifies that she drove in all that she could find ; and even assuming that, there were other nails sticking up, and that it was negligence upon the part of the landlord to allow them to be there, still, according to' her own showing, those particular nails did not contribute to the-happening of the accident.
The witness says : “ On the first Friday, just before I was hurt, I saw a nail that was dangerous. * * * I didn’t take a hammer and drive it in. It wasn’t my business to do it. I had done it. before. That nail, I think, I tumbled over on Friday. I did not see that nail there the Friday before.”
In several other places, however, the witness testified that she drove in all the nails that she saw. Other witnesses were examined,, who testified to seeing old nails sticking up, and that' some had been pulled out and some driven in.
The husband of the plaintiff testified that he told the agent about the bad condition of the stairs, who stated that he would fix them as soon as possible.
From this condition of the evidence it does not appear that anything of which the landlord had notice, or which had existed for a. sufficient length of time to justify us in holding that he had constructive notice, contributed in any way to the happening of the. accident.
I think, therefore, that the judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Judgment affirmed, with costs.