On appeal from the Supreme Court.
For the plaintiff-appellant, McDermott, Enright & Carpenter (Patrick A. Dwyer, of counsel).
For the defendant-respondent, McCarter, English & Egner.
The opinion of the court was delivered by
WELLS, J. This is an appeal from the judgment entered upon the granting of a nonsuit by the trial court sitting in the Supreme Court with a jury at the Essex Circuit.
The defendant company, as the owner of certain premises at Glenwood avenue and Lackawanna Plaza, Bloomfield, leased such premises on September 1st, 1937, to one Earl I. Ramer. This property had been constructed for use as an automobile service station, and the land, building and equipment were rented to Ramer for such use.
Under the terms of the lease the tenant, Ramer, agreed to repair or replace all of the equipment or apparatus which might be lost, stolen, damaged or destroyed during the term of the lease, except in case of fire or other unavoidable casualty. In addition, the tenant assumed responsibility for "full and exclusive control of premises and equipment thereon" and agreed to indemnify the landlord, Atlantic Refining Company, from any claims arising through operation of the premises. By an ancillary agreement between the parties the tenant agreed to act as a dealer for the landlord company, and agreed to purchase stipulated amounts of gasoline and lubricants to be provided by the company.
In one of the rooms of the building erected on the premises there was installed a semi-hydraulic type lift, such as is used for hoisting automobiles for the purpose of lubrication. This lift was part of the equipment of the service station at the time of the renting and consisted of a large piston which supported two tracks of fifteen feet in length on which an automobile could rest while being raised and lowered. At each end of each track there were automatic chocks which, through the operation of roller arms, raised up when the tracks were off the floor and leveled off again when the tracks were lowered. There were also provided two moveable chocks which could be placed against the wheels of an automobile as a further means of keeping it from moving while on the tracks.
On December 29th, 1937, the plaintiff, Brittain, brought his automobile to this service station in order to have it greased and the oil changed. He drove his car on the tracks of the lift as far as it would go and left the brake off so the car could be moved on the tracks during the course of the work. He then remained in the room while the car was being serviced, and was standing at the back wall and about three feet from the front of the car when the lift was being lowered. When the car was about eight inches from the floor it rolled forward off the tracks and pinned the plaintiff against the wall, causing the injuries for which damages are being sought in this action.
At the trial in the court below the above facts were proven as
part of the plaintiff's case, and in addition it was shown that at the time of the accident and for several years prior thereto, covering a period which included the beginning of the tenancy, automobiles had tended to roll forward while on the lift. Expert testimony was introduced to the effect that the tracks had an appreciable pitch downward toward the back of the lubricating room which was accentuated when the lift was loaded and raised. It was also shown that the piston, when fully raised, was one-eighth of an inch out of plumb, causing vibration when the lift was raised or lowered and also causing a slant of the tracks toward the back of the room. These conditions were such as to cause cars to roll forward, as had happened when the plaintiff was injured. The witness attributed these conditions to the manner in which supports from ...