On appeal from the First District Court of Paterson, Passaic county.
For the appellants, Leopold Frankel.
For the appellee, Franklin J. Marryott.
Before Justices Parker, Lloyd and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This appeal brings up for review a judgment of nonsuit granted by the trial judge, sitting without a jury, in favor of the defendant and against the plaintiffs. The facts are as follows: The plaintiff in this case Anna Toscani, a heavy set woman, was injured on November 14th, 1932, in falling while attempting to descend the stairs from the second to the ground floor in the store of the defendant. The negligence charged in the complaint, as causative of the accident, was that the stairway, fan shaped in character, was faulty in construction and that this alleged faulty construction was known to defendant. Proof was submitted that the stairway was constructed contrary to sections 249 and 297 of the
building code of Paterson. This code, as to the stairway involved, was adopted May 19th, 1930, and approved May 23d, 1930. It is argued that the stairway was part of the original construction of the building and was constructed prior to the passage of the building code. At all events it was shown that the tread of the stairway was short one and one-half inches of section 247 of the code applied and one-half inch short if section 297 of the code applied. The stairs were built narrower in the center than at the ends. The photograph of the stairs show a railing in the center and on each side thereof.
The court granted a nonsuit without giving any reason for so doing. It is true that in the case of Ippolito v. Ridgefield, 94 N.J.L. 97, our Court of Errors and Appeals, by Chancellor Walker (at p. 99), held, inter alia: "The trial judge gave no reason for his action in granting the nonsuit. This also is not in accord with approved practice." Nevertheless the reversal was not based on that ground. We do not choose, in the instant case, to regard the omission to state the reason for the granting of the nonsuit as reversible error.
We start out with the fundamental principle that in passing upon motions to nonsuit and to direct a verdict upon the ground that there was no evidence of the defendant's negligence, the court is not concerned with the credibility of witnesses nor with the weight of the evidence, but must take as true all evidence which supports the plaintiff's view and must give him the benefit of all legitimate inferences which may be drawn therefrom, in his favor; and where the evidence is such that reasonable minds may differ as to the fair conclusion to be drawn therefrom as to whether or not the defendant exercised reasonable care, a jury question is presented, and such motions must be denied. Lozio v. Perrone, 111 N.J.L. 549.
Taking as true all the evidence which supports the plaintiff's view and giving her the benefit of all legitimate inferences which may be drawn therefrom in her favor, it seems to us that reasonable minds cannot differ as to the fair conclusion to be drawn. The alleged negligence of the defendant is simply not present.
Assuming it to be a fact that the steps in question did not comply with the measurements provided in the building code, and that it is fairly inferrable that the stairs were in the building before the code was passed, it is well settled that penal statutes which gives no private action may nevertheless affect private rights upon common law principles applicable to the action of negligence. Evers v. Davis, 86 N.J.L. 197; Kelly v. Henry Muhs Co., 71 Id. 358; Guse v. Martin, 96 Id. 262; Doyon v. Massoline Motor Car Co., 98 ...