On appeal from the Supreme Court.
For the plaintiffs-appellants, Davies & Davies (Archibald Kreiger, of counsel).
For the defendant-respondent, John W. Taylor (Richard H. Tunstead, of counsel).
The opinion of the court was delivered by
RAFFERTY, J. This appeal is from a judgment of the Supreme Court reversing a judgment entered in the Passaic County Circuit Court in favor of plaintiffs in an action based on negligence.
It appears that plaintiffs were tenants in an apartment building located in the City of Paterson, which was owned and operated by defendant. The building proper was located about 30 feet from the sidewalk line and was connected thereto by a walk leading from the sidewalk line to the entrance door of the building. Defendant had erected and maintained a canopy which served the purpose of protecting tenants from inclement weather and protected the walk as well from falling rain or snow. The end of the canopy at the entrance was not flush with the building line but a space of several inches intervened at that point which was not protected.
The alleged cause of action occurred on the morning of January 19th, 1939. Snow had fallen for some time prior to the happening of the accident and, generally, it was windy and the temperature had been below the freezing point for several days. Mrs. Alm left her apartment during the morning for the purpose of doing some marketing and, having
taken a few steps from the entrance door, slipped on the outside stairway platform and fell down the steps leading to the walk, thereby causing the injuries complained of. The platform had become slippery, it was contended, because of the negligence of defendant in not causing the removal of snow which had fallen on it.
At the trial of the matter the jury awarded the plaintiff wife $300, and plaintiff husband $200. Upon a rule to show cause why a new trial should not be granted on the ground that the verdicts were contrary to the weight of the evidence and inadequate, the trial court determined that a new trial as to damages only should be awarded unless defendant would consent to a verdict in a higher amount fixed by the court. Defendant would not consent to this increased amount and a new trial was had as to damages only, resulting in verdicts in favor of plaintiffs in substantially increased amounts.
Defendant appealed to the Supreme Court from the judgments entered on these verdicts resulting in a reversal thereof by that court and it is from this reversal of judgments that plaintiffs below appeal here.
The principal, and it seems, dispositive point on this appeal involves a refusal on the part of the trial judge to admit into evidence on behalf of defendant a certain statement signed by plaintiff's medical witness. Dr. Jarmulowsky, on behalf of plaintiffs, testified as to the history of the accident given him by Mrs. Alm shortly after the occasion and the nature and extent of the injuries suffered by her. On cross-examination the doctor was shown a paper by counsel for defendant and the testimony proceeded as follows:
" Q. I show you a piece of paper, doctor, and ask you whether that bears your signature on the bottom? A. It does. Q. Did you write in there the history which you received from your patient? A. I don't think that is my writing. It is my signature, but not my writing. * * * Q. Is that the history which you received from your patient, doctor, the one that is written there? A. Well, the history of the accident doesn't ...