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Cleary v. Meyer Brothers

Decided: January 10, 1935.

FRANCES CLEARY AND WILLIAM P. CLEARY, PLAINTIFFS-RESPONDENTS,
v.
MEYER BROTHERS, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT



On appeal from the Passaic County Circuit Court.

For the appellant, George F. Lahey, Jr.

For the respondents, Seufert & Elmore.

Hetfield

The opinion of the court was delivered by

HETFIELD, J. Suit was instituted by the plaintiffs, who are husband and wife, for personal injuries alleged to have been sustained by the wife, through the negligence of the defendant, and this appeal brings up for review a judgment based upon the jury's verdict which awarded the wife $1,000, and the husband $500.

The facts show that on August 9th, 1929, the plaintiff Frances Cleary entered the department store conducted by the defendant, in Paterson, New Jersey, and after making a purchase, had occasion to visit the ladies' rest room. The entrance to the rest room consisted of two swinging doors, in front of which was a step about eight inches higher than the outside floor, the outer edge of the step being approximately twenty-four inches from the base of the doors. When leaving the room and passing through the entrance, Mrs. Cleary fell, and as a result sustained a fractured wrist.

The defendant contends that the trial court erred in refusing to nonsuit and to direct a verdict in its favor.

The complaint alleges "that the said fall of the plaintiff Frances Cleary was caused by the improper location, construction and maintenance of the doors and steps forming the exit from said rest room," and that "the defendant was negligent in causing said doors and stairs of said exit to be constructed and maintained in such a dangerous, careless and negligent manner. The improper construction and maintenance of said doors and stairs was a nuisance maintained by said defendant," and further, that "the defendant failed and neglected to maintain a guard at said exit, to protect its patrons and business invitees from injury."

The record indicates that Mrs. Cleary was the only witness produced on behalf of the plaintiffs, to support the allegations contained in the complaint; and we do not find that her testimony established any facts from which negligence might be reasonably inferred, or to show that the defendant had violated its duty toward the plaintiff, who was an invitee, to exercise ordinary care to render the premises reasonably safe for the purpose for which she entered. Her version of the conditions which existed and the circumstances relating to the happening is best illustrated by quoting her testimony in part: "Q. Will you tell the court and jury just what happened while you were in Meyer Brothers' store? A. Well, I went into the store and I got a pair of bedroom slippers for my daughter, then we went to the rest room; coming out of the rest room I pushed this swing door and made one step forward and fell.

"Q. Was it clear inside the ladies' rest room there? A. Yes, sir. Q. Was it light outside the rest room when you got out? A. Well, there was no light lit; it was just from the light from the out door.

"Q. You pushed the door like that [illustrating]? A. Yes, pushed the door out and made one step and fell. Q. Went down ...


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