On appeal from the Essex County Circuit Court.
For the appellant, Brenner & Kresch (Alfred Brenner, of counsel).
For the respondent, Green & Green (Harry Green, of counsel).
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The plaintiff below was nonsuited by the trial judge of the Essex County Circuit on the opening made by counsel to the jury. Counsel for the plaintiff, in outlining the case, offered to prove that the plaintiff below suffered severe injury by falling on an icy pavement on the night of February 6th, 1930. The circumstances surrounding this occurrence were that about a week or two prior to that date there had been a fall of snow. The defendant, owner of the premises in front of which the accident happened, had caused the sidewalk to be shoveled off. The sidewalk is made of flagstones about four feet wide. There is an expanse of lawn between the dwelling house and property line and the snow was shoveled off apparently to the right and left, some of it being thrown toward the curb and some on the lawn. Soft weather by day caused the snow to melt so that water from the melted snow trickled across the flagstone sidewalk. Colder weather at night froze the water into ice and the plaintiff, in walking past defendant's premises at night, slipped, fell, and broke her leg.
On motion of defendant, judgment of nonsuit was entered on this opening.
Plaintiff appeals, contending that she should not have been nonsuited and that the opening statement of fact which plaintiff contended would be proven was sufficient to create a case for the jury. This is what counsel said: "The person who shoveled that snow shoveled it back inside of the property line, that is, off the sidewalk and back on the lawn. * * * In shoveling it in that way, this person piled it up back of the sidewalk line. Between the curb and sidewalk there was more snow. Probably some of this snow had also been shoveled over toward the curb." And further, "if we show that this snow was shoveled off this sidewalk in a negligent manner and put upon this property line or back on the lawn so negligently that a person in the exercise of reasonable care would know that there was a danger of its melting and going on the sidewalk and thereby freezing and causing injury, we feel then that we have established a case for your determination."
It will be observed that counsel does not point out with any definiteness how he proposes to prove negligence. Certainly it is not in the manner of shoveling. He does not charge that any act of the defendant created any added danger to pedestrians using the sidewalk.
The appellant, in the argument for reversal in this court, urges that the complaint in the present case is in the identical language of the complaint in Aull v. Lee, 84 N.J.L. 155. Whether or not that be so is immaterial.
The single question before us is whether, under the opening, the plaintiff should have been nonsuited. Counsel did not state to the court and jury that in addition to the opening statement he proposed to prove the facts set forth in his complaint. Now when the trial court has passed upon the legal sufficiency of the facts presented in the opening, appellant cannot in this court fall back upon the facts stated in the complaint to obtain a reversal of the judgment of nonsuit. Since counsel therefore did not rely upon the facts stated in his complaint, he is deemed to have waived reliance upon those facts. Davenport v. Holden, 95 N.J.L. 197; Carey v. Gray, 98 Id. 217.
We do not think that counsel, in opening to the jury, stated a cause of action. The mere allegation of negligence does not give rise to a cause of action unless it follows that a duty has been breached. "Negligence creates no cause of action unless it expresses or establishes a breach of ...