On appeal from the Supreme Court.
For the plaintiff-respondent, Kearns & Bruder.
For the defendant-appellant, Coult, Satz & Tomlinson.
The opinion of the court was delivered by
PERSKIE, J. This appeal brings up for review a judgment entered for the plaintiff-respondent, hereinafter called plaintiff, against the defendant-appellant, hereinafter called defendant, in the sum of $12,950, for personal injuries sustained by the plaintiff in falling into an elevator shaft which was maintained by the defendant in a building of which it was in possession.
This appeal is based on three grounds: (1) The trial court erred in refusing to order a judgment of nonsuit in favor of the defendant against the plaintiff, though requested
to do so by the defendant's attorney. (2) The trial court erred in refusing to direct the jury to return a verdict in favor of the defendant against the plaintiff, though requested so to do by the attorney of the defendant. (3) Alleged error in charging the jury of "what is a reasonable place, &c." But since this reason is not argued and therefore considered abandoned (Marten v. Brown, 81 N.J.L. 599; Bahrey v. Poniatishin, 95 Id. 128) it will serve no useful purpose to set forth the charge complained of in detail.
The first and second grounds of appeal are submitted together. We find no difficulty in disposing of the first ground of appeal. Suffice it in this respect to point out that the testimony as to lights, the manner of the operation of the elevator and guard gate, at the time of the accident, all tended to establish the negligence of the defendant. This conclusion is not seriously challenged. Assuming, says in effect, the defendant, that a jury question of proximate causation was raised by the testimony on this feature of the case, nevertheless, the plaintiff was guilty of such contributory negligence that the court, as a matter of law, should have directed the jury to return a verdict in favor of the defendant and against the plaintiff. The disposition of the second ground of appeal is less free of difficulty.
The facts before the court at the close of the case were as follows: The Mutual Grocery Company (defendant) rented store premises at the corner of Blackwell and Morris streets, Dover, New Jersey. In addition to the store it also rented a portion of the second floor for office space and the whole of the third floor, which it used for bakery purposes. There was an old type elevator in the building which was entirely under the control of the defendant. The elevator was reached by a side entrance on Morris street. There was a step or platform between the street door and the guard door at the shaft. This step or platform was elevated, a foot above the outside level, but was level with the step or platform when the elevator was at that floor. It was operated by power and was started and stopped by a rope. Most of the time the elevator was in charge of an employe of the defendant, one, John C. Gaffney.
The guard gate to the elevator was supposed to automatically rise and drop as it reached or left a floor stop. It usually, but not always, worked.
The plaintiff was employed by a milk concern and was accustomed to call with a truck at the defendant's place in the very early hours of the morning, between three and four o'clock, with fresh milk, and, at the same time, take away the empty bottles of the previous delivery. According to the testimony, the custom was to leave the empty bottles in a paper box on the floor of the elevator, at the left as one entered. With the bottles was always a note on a piece of paper stating how many bottles were needed for the day's delivery. The plaintiff and another man who drove the truck and worked with him, knew all about this and plaintiff was accustomed to open the outer door, which was left unlocked, and go to the elevator, obtain the bottles and note, bring them out to the truck, read the note and deliver the required number of bottles. Sometimes the elevator was not at that floor, and in such case, they would call up to Mr. Gaffney who would send the elevator down to the ground floor with the empty bottles aboard. Shortly after three o'clock in the morning on October 12th, 1931, Mr. Gaffney says he went up in the elevator and that the electric light bulb at the top of the shaft was lit. That about four o'clock in the morning on the same day, while it was still dark, the truck stopped at the premises and the plaintiff went in the outer door, not having any light with him (although there was a flash light carried on the truck for various purposes, such as, "if we are in a new place, we use it, &c." Plaintiff said: "I stepped up on the step, I made two steps, and I reached for the guard gate. I slipped and fell because it wasn't there."
The injuries sustained by the plaintiff were serious. He was confined in the hospital on the first occasion for five months and on the second for five weeks. He has a twenty-five per cent. permanent disability. His medical and hospital expenses amounted to $1,194.75.
On the evidence aforesaid was it sufficient to go to the jury on the question of the plaintiff's contributory negligence?
We think that there was sufficient evidence presented so that it could not be correctly or legally said that the minds of reasonable men ...