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Creamer v. Levy

Decided: June 20, 1931.

MICHAEL CREAMER, PLAINTIFF,
v.
MAX LEVY AND SAMUEL BLUMENFIELD, CO-PARTNERS, TRADING AS LEONARD'S, DEFENDANTS



On defendants' rule to show cause why plaintiff's verdict should not be set aside.

For the rule, Freeman Woodbridge.

Contra, Henry M. Spitzer (John E. Toolan, of counsel).

Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. This suit was brought to recover damages for personal injuries sustained by plaintiff whilst upon defendants' property.

At the trial, at the Middlesex Circuit, the following facts appeared without substantial dispute. The defendants conduct a store in New Brunswick. Plaintiff was not regularly employed by the defendants. On August 16th, 1928, following a rain storm defendants engaged him to clear away some debris that had accumulated in the yard in the rear of their store during the storm. The debris had obstructed a drain pipe in the yard so that the water in the yard flowed through a doorway in the rear of defendants' store and damaged some merchandise. In order to permit the water to

drain from the store, the defendant, Max Levy, chopped a hole in the floor just inside the rear doorsill. Plaintiff, at defendants' request and invitation, cleared the debris from the yard and after doing so attempted to enter the store from the rear door. His foot went through the hole in the floor, which had been left uncovered and unguarded, and as a result thereof he was injured. The plaintiff brought this suit to recover for such injuries and recovered a verdict.

The only reason assigned and argued for setting aside the verdict is that the court erred in refusing to nonsuit and to direct a verdict for the defendants upon the grounds (1) that the plaintiff exceeded the limits or bounds of his invitation; (2) that defendants were not negligent; (3) that the plaintiff was guilty of contributory negligence.

We think that the motions were properly denied.

The defendants do not question that the plaintiff was an invitee upon the premises for the purpose of clearing the debris from the yard. They, however, argue that defendants did not extend any invitation to the plaintiff to enter the store by the rear door after he had completed his work. We think that there was evidence that they did and that the plaintiff did not exceed the bounds of his invitation.

The evidence clearly indicates that the plaintiff was requested to work upon the premises; that the defendant Max Levy knew he was working in the yard; that the plaintiff was to be compensated for his labor; that the amount of compensation was to be fixed after the work was completed; that this compensation was to be determined when the plaintiff came into the store, the defendant Levy himself testifying that he expected plaintiff to come in through that rear doorway which was close by his work. There was an outer and inner door at this doorway. The defendant Levy testified that he left the outer door wide open and the inner door ajar, after asking the plaintiff how he was "making out." It is argued that the defendant Levy left the inner door ...


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