On appeal from a judgment of the Supreme Court.
For the appellants, Morris & Downing.
For the respondent, Dolan & Dolan and Joseph Coult.
The opinion of the court was delivered by
DONGES, J. Plaintiff-respondent brought suit to recover compensation for injuries alleged to have been received through the negligence of the defendants. The trial resulted in a verdict in favor of the plaintiff therein against the defendants-appellants, Joseph Abruzzo and Anna F. Abruzzo, and in favor of the defendant Paul Monevasis against the plaintiff. From the judgment entered thereon against Joseph Abruzzo and Anna F. Abruzzo this appeal is taken.
The complaint alleged that the appellants were the owners of certain premises which they leased to Monevasis, who conducted a public barber shop therein; that plaintiff was in said barber shop as a patron of the lessee; that the defendants owed a duty to plaintiff to maintain the premises in a safe condition; that defendants, disregarding said duty, negligently allowed the premises to become in an unsafe condition and in a state of disrepair; that because of defendants' negligence a large iron wall radiator, affixed to and a part of the premises, became loose and without warning fell on plaintiff, seriously injuring her.
The proofs showed that the owners undertook to make some alterations in the barber shop in order to increase its size. The changes were made in a wall near the rear of the premises. The radiator, weighing about two hundred and fifty pounds, was hung on a bracket affixed to the wall. There was a steam pipe from this radiator to a furnace in the basement, which pipe ran through another wall built at right angles to the wall on which the radiator hung. It was this latter wall, at a point about two feet from where the steam pipe entered the wall, that was altered so as to enlarge the shop. There was testimony from which it might be concluded that these alterations were so negligently done as to cause a settling of the wall, causing the screws holding the
brackets on which the radiator rested to pull out, in consequence of which the radiator fell upon the plaintiff.
The first ground of appeal is that the trial court erred in refusing to nonsuit on plaintiff's opening. The opening is not made a part of the record.
It is objected that the complaint alleges no failure of duty on the part of appellants and that plaintiff could not, in opening, set out the facts relied upon to establish defendants' negligence. It has been held that "an averment in a declaration that plaintiff's injuries resulted directly from the negligence * * * of the defendant without any specification of what constituted the negligence * * * discloses the existence of a cause for action against the defendant." Savage v. Public Service Railway Co., 95 N.J.L. 432. There was such allegation in this case. The appellants made no objection to the introduction of testimony. Nor did they allege surprise. There is no merit in this ground of appeal.
The second and third grounds of appeal are directed to the refusal of the trial court to grant appellants' motion to nonsuit at the close of plaintiff's case, and to the refusal to direct a verdict in favor of appellants at the close of the entire case.
Some facts are undisputed. It is not disputed that the radiator fell and injured the plaintiff; that it was supported on brackets attached to the wall by screws; and that the screws tore out, causing the radiator to fall. As above stated, there was testimony from which it might be concluded that the manner of removing a part of the wall in close proximity to the radiator caused the wall to settle, and that such settling produced a strain on the steam pipe attached to the radiator, which in turn tore out the screws and allowed the radiator to fall. There was testimony from which it might be found that ...