On appeal from the Mercer County Circuit Court.
For the respondent, Harry Heher and Alexander Budson.
For the appellant, Edward L. Katzenbach.
The opinion of the court was delivered by
BLACK, J. This suit was brought to recover compensation for personal injuries. The case was tried by Judge Oliphant and a jury resulting in a judgment for the plaintiff. The testimony shows, the plaintiff on the 3d of January, 1928, entered the defendant's department store located at Nos. 112-114 Academy street, Trenton, New Jersey, for the purpose of purchasing merchandise from the defendant. As such, he was an invitee. He stepped into and fell down an open elevator shaft causing the injuries complained of. Negligence is charged against the defendant.
At the trial, the defendant's motion to direct a verdict in favor of the defendant was denied by the trial judge. This ruling of the trial judge, and error in the charge to the jury are the alleged grounds of error.
At the trial the plaintiff testified as follows:
"Q. Now, as you landed on the first floor again from the basement the second time did Mr. Messler say anything to
you. A. Yes, let us go up. Q. Let us go up to the third floor? A. Let us go up to the third floor. And we went to the elevator and I was still striking matches until we got up on the first floor, and Mr. Messler says, 'Let us go up.' And I walked over and Mr. Messler had lifted up the gate. Q. You got to the elevator shaft, did you? A. Yes, sir. Q. And he did what? A. Mr. Messler lifted up the gate. Q. What were you doing at the time he was lifting up the gate? A. I was standing there. Q. Did you strike any matches at that particular moment? A. No. Q. As he lifted the gate, then what? A. I stepped in. Q. Where was he standing? Assume this is the entrance to the gate. A. On the side. Q. Show where he was standing? A. This is the elevator shaft and Mr. Messler was on this side. He picked up the gate and stepped over on this side. (Indicating). The Court. On the lefthand side facing the elevator? The witness. Yes. Q. And as he stepped over, what did you do? A. As he stepped over I came over on this side and I stepped right in. Q. Do you remember what happened after that? A. No, sir."
This court has said, one who invites another upon his premises owes him a duty, not only, to exercise ordinary care to render the premises reasonably safe for the purpose for which the invitee entered, but to abstain from any act which may make the invitee's use of the premises dangerous. Kappertz v. The Jerseyman, 98 N.J.L. 836.
Manifestly, under the testimony above cited and the rule of law stated, the vital questions at issue were for the jury to determine. It was not error therefore, for the trial court to refuse to direct a verdict in favor of the defendant.
Finnegan v. The Goerke Co., ante, p. 159. In that case there was placed a rattan box three feet long and one and one-half feet high, fifteen inches wide in the aisle outside of the counter of a ...