On appeal from the Essex County Circuit Court.
For the appellant, Jacob Fox.
For the respondent, Joseph Coult and John J. Francis.
The opinion of the court was delivered by
PERSKIE, J. This appeal brings up for review a judgment in favor of the defendant-respondent (hereinafter called defendant) and against the plaintiff-appellant (hereinafter called plaintiff) based on a jury verdict directed by the learned trial judge below.
The propriety of that direction depends entirely on the determinative fact whether or not the plaintiff was on the defendant's premises at the time of the accident.
The trial judge decided, on what he conceived and held to be the undenied testimony of the plaintiff, that she was on the defendant's premises; that she was there by the mere passive acquiescence of the defendant and therefore he was under no obligation to her except to abstain from acts which are willfully injurious; and, that since there were no proofs of any such acts on the part of the defendant, he, the judge, felt constrained and accordingly did grant the motion for a direction. Saunders v. Smith Realty Co., 84 N.J.L. 276, 279.
Defendant owns premises 476 Bergen street, Newark, New Jersey. It consists of a three-story, six-family dwelling. Defendant occupied a second floor apartment thereof. At or near the end of said building is the kitchen of the apartment. The front of the building extends the full width of the property
line. A short distance from the front of the premises the building becomes narrower, a sort of recess or cut-off in the building, and from the latter point there is an alleyway of brick or stone, three feet nine inches in width and running the full length of the rest of the building.
The plaintiff was a tenant in the adjoining premises, 478 Bergen street. There also appears to be an alleyway between the defendant's property line and the full length of the building of the house in which the plaintiff lived. This alleyway adjoins the defendant's alleyway and from the beginning point of the latter runs parallel thereto to the end of the building in which the plaintiff lived. It is two and one-half feet in width and is made of gravel. The building on 476 Bergen street is longer than the building on 478 Bergen street. Each property has a back yard.
On December 18th, 1931, the plaintiff, while putting or dumping ashes or garbage in a can which was at a point near the rear or end of defendant's building, was struck by glass falling out of defendant's kitchen window.
Although the complaint was based on some misconceived notion of the plaintiff's rights on the premises as a licensee or invitee, nevertheless, we are rather of the opinion that it was perhaps broad enough to embrace a cause of action on the theory that the plaintiff was where she had a right to be. The answer consisted of a denial of the plaintiff's allegations and a separate defense of contributory negligence. There was no defense interposed by the defendant that the plaintiff was a trespasser. At all events, there was no objection to or challenge of the pleadings. The trial was conducted on the specific issue, ...