On appeal from the Supreme Court.
For the plaintiff-respondent, Collins & Corbin (Edward A. Markley and James B. Emory, of counsel).
For the defendant-appellant, Carey & Lane (Robert Carey, Harry Lane and David A. Pindar, of counsel).
The opinion of the court was delivered by
PORTER, J. The plaintiff-respondent, Rudolph Lindemann, recovered a judgment in the Hudson County Court of Common
Pleas against the defendant-appellant, F.W. Woolworth Company (hereinafter called Woolworth Co.), for personal injuries suffered by him as a result of a fall on the sidewalk on Bloomfield street, Hoboken, in front of premises occupied by Woolworth Co. as lessee. Woolworth Co. appealed to the Supreme Court where the judgment was affirmed, 121 N.J.L. 614. From that affirmance comes this appeal.
We conclude that the Supreme Court was in error in not reversing the judgment below. Under the facts and the settled law there was no liability on the part of Woolworth Co. and a nonsuit should have been allowed by the trial court.
Lindemann was walking along the sidewalk at about four o'clock on the morning of February 10th, 1935; it was dark and a light fall of snow covered the ground.
The premises occupied by Woolworth Co. fronted on Washington street, where its store was located, and ran through to the street in the rear, Bloomfield street, where it had a yard and a driveway across the sidewalk leading into the premises. It was on the sidewalk of Bloomfield street where Lindemann fell. The sidewalk was of concrete, abutting the curb, and was about nine feet in width. Between it and the building line, where a fence was located, was an unpaved space of about ten feet in width consisting of dirt and cinders and depressed a few inches below the level of the concrete sidewalk. As Lindemann reached the south end of the premises, walking in a northerly direction, he walked a few steps along the paved sidewalk in question when he stepped, or slipped, off the sidewalk onto the unpaved lower level, fell to the ground and was injured.
At that time Woolworth Co. was in possession of the premises under a lease and had been since about January 1st, 1934.
The sidewalk had been constructed in 1927, when the defendant S.S. Kresge Company was in possession under a lease, and had remained unchanged until the date of the accident.
The Woolworth Co. lease is not before us, and what its provisions may be with respect to its obligation to the lessor to make ...