On appeal from the Middlesex County Court of Common Pleas.
For the defendant-appellant, John C. Stockel.
For the plaintiff-respondent, Huyler E. Romond (John E. Toolan, of counsel).
Before Brogan, Chief Justice, and Justices Trenchard and Parker.
The opinion of the court was delivered by
TRENCHARD, J. On or about February 27th, 1936, the defendant below was the owner of a ceramics plant in Middlesex county. Some time prior thereto it gave one Dunham, a contract to build a factory building on its premises which are enclosed by a fence. Dunham subcontracted the roofing work to a roofing company of which the plaintiff below was the president. The evidence tends to show that on February
27th, the plaintiff, in order to see how far the work on the building had progressed to ascertain when his company could proceed with the roofing, drove to defendant's premises and entered the same at the gate at which there was a sign reading "report at gate house," which he did not do. He arrived at the gate about nine-ten A.M. He did not ask for permission or report at the gate house or inquire for instructions. He knew there was a gate man in attendance at the gate house. He drove through the plant, past the main office in which the superintendent was located, to within one hundred feet of the new building. He testified that he was satisfied to take the chance of how to get to the roof himself. He did not ask anyone in authority how to get to the roof. He entered the new building and looked for means to get on the roof to inspect it and found none. Thereupon he walked into the "old building" of defendant's which was adjacent to the new building and started to use a flight of steel or concrete stairs leading from the first to the second floor in a part of the "old building" which was largely out of use. When plaintiff came to the second floor the room was dark and he had trouble to see where he was going, but he found a door there. He went to this door "to go upstairs." He opened it, took a step and felt himself falling, and he fell down an elevator shaft and thus sustained the injury for which this suit was brought, and for which he received a verdict, and the judgment from which the defendant appeals.
Now the defendant insisted at the trial, and now insists, among other things, that the plaintiff exceeded the limits of any alleged implied invitation to be on defendant's premises, and was therefore a mere licensee where and when he was injured, and hence that the only duty owing to him by the defendant was to refrain from acts willfully injurious.
It is, of course, well established that the liability of an inviter is circumscribed by the invitation, and does not extend to invitees whose injuries are received while using the premises not within the limits of the invitation, and the mere passive acquiescence by the owner in a certain use of his property imposes no obligation upon him to keep it in a safe
condition for the benefit of the user. Ryerson v. Bathgate, 67 N.J.L. 337; Nolan v. Bridgeton and Millville Traction Co., 74 Id. 559; Saunders v. Smith Realty Co., 84 Id. 276; Bonfield v. Blackmore, 90 Id. 252; Gavin v. O'Connor, 99 Id. 162; Liveright v. Lifsitz Furniture Co., 117 Id. 243.
That rule (amongst others) was invoked by the defendant below, and is invoked here, but we need not now dwell further upon the evidence in connection with which it was to be considered. It will be sufficient for present purposes to examine an ...