On defendants' appeal from the Essex County Circuit Court.
For the appellants, M. Harold Higgins.
For the respondents, Harold Simandl.
Before Brogan, Chief Justice, and Justices Parker and Bodine.
The opinion of the court was delivered by
PARKER, J. This is a tenement house accident case. The infant plaintiff was a young child at the time of the injury and the father brings his suit also for damages per quod. There was a verdict for the child, which was reduced on rule to show cause, exceptions being reserved. The verdict for the father was not disturbed. The plaintiffs' case was that when the parents rented certain rooms on the second floor of a building at 132 Railroad avenue in Newark, the agent for the
landlord said that there was no back yard in which to hang out the clothes, &c., but only a roof, and that the clothes could be hung out and the children allowed on that roof, but that they should not be allowed to make nail holes in the roof. The child's mother testified that she noticed that the skylights were in bad order and called attention to it. The little girl, Evelyn, plaintiff, was sent out by her mother to bring in the clothes pins and fell through the skylight. She testified in the case and said that she had just bent down to pick up the clothes pins and "sort of leaned against the skylight and felt herself falling; that it was rotten around the ends and could be lifted up." There was a motion to nonsuit on the opening and the court allowed the plaintiffs to make an additional opening. This is now urged for error. We think that there was no error which should lead to a reversal.
In the first place, we think that it was entirely within the discretion of the trial court to permit an additional opening to cover any point missing on the original opening. In the second place, we consider that the refusal of a motion to nonsuit on the opening stands at least as well as a similar refusal to nonsuit when the plaintiff rests. In the latter case the rule is well settled that even though it be error at the time to refuse to nonsuit, if on the defendants' case facts appear which raise a jury question, that error is cured. Our cases are plenary in this regard. With regard to a motion to nonsuit on the opening it was said in Kelly v. Bergen County Gas Co., 74 N.J.L. 604: "In practice, a motion for a nonsuit, made upon the opening of counsel, is, perhaps, more liberally treated than an application for a nonsuit at the close of the plaintiff's case. In the former case, if objection be made to a statement too meagre to sustain the plaintiff's case, counsel will, doubtless, be permitted to enlarge his statement. But in the haste required by the pressure of business at the present day, counsel, in general, restrict themselves to a mere outline of the case they design to present."
Other cases on the same line are Jordan v. Reed, 77 N.J.L. 584; Carr v. Delaware, Lackawanna and Western Railroad
Co., 78 Id. 692; D'Aloia v. Unione Fratellanza, 84 Id. 683; Davenport v. Holden, 95 Id. 197; Carey v. Gray, 98 Id. 217; Lowenstein v. Lohman, 109 Id. 215. In this last case we refused to consider the alleged error in nonsuiting simply because there was nothing in the case to show what the opening was or that it stated any case for the jury, and the presumption was that no error had been committed. In the case at bar, there was in our opinion quite sufficient evidence produced on the plaintiff's case to carry it past a nonsuit. We think, in any event, the refusal to nonsuit on the opening, even conceding it to be error, which we do not concede, was harmless error.
There are twenty-seven grounds of appeal. A great many of them are defective as not bringing up any ruling of the trial court. What we have just ...