On appeal from the Essex County Court of Common Pleas.
For the plaintiffs-respondents, John Joseph Foerst (Louis K. Wilder, of counsel).
For the defendant-appellant, Cox & Walburg (William H. D. Cox, of counsel).
Before Brogan, Chief Justice, and Justices Donges and Perskie.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The plaintiff Mildred Rosenquist recovered judgment for personal injuries; her husband,
Carl, judgment for damages and expenses that resulted from his wife's injuries. The defendant appeals on the ground that it was error on the part of the trial court to have refused the direction of a nonsuit and a verdict for the defendant. It is also said that there was error in the court's charge. The following is a summary of the facts in proof upon which the plaintiffs' cause of action was rested: Mr. Rosenquist and his wife contracted with the defendant, Brookdale Homes, Inc., for the construction of a dwelling house in Bloomfield, New Jersey, according to plan and specifications. The written agreement provided that the defendant would build the house and make conveyance to the purchasers on January 15th, 1941. The structure was not entirely completed by the date agreed upon but nevertheless plaintiffs took title to the house and land on January 29th, in an unfinished state. The work remaining to be done under the contract included the placing of a brick veneer on the front of the house, grading of the lawn, erection of stoops, and the finishing of the approach to the garage and the house as well as laying the sidewalk. Plaintiffs moved into the house on February 1st. The attorney of the defendant assured them at the time of the passing of title that the structure would be completed according to specifications.
On February 17th, Mrs. Rosenquist, a school teacher, arrived home at four o'clock in the afternoon. She came by automobile. The driveway to the garage was still unfinished. Noticing a wheelbarrow and other implements on the path that led from the driveway to the house, she returned to the street line intending to enter the house by the front door. Mason materials, stones and the like, lay on the land in front of the house. The walk from the curb to the front door was unfinished and some planking had been laid extending to the front doorway. She slipped, fell and was injured on the planking. There had been a light fall of snow that day and underneath the snow on the planking was a thin layer of ice, and this it was open to the jury to find was the occasion of her mishap. Earlier in the day some workmen, engaged in finishing up the work on the place, were mixing concrete and obtained a supply of water by attaching a hose to
a convenient faucet. At the time they engaged in some horseplay and squirted water out of the hose on each other. Thereafter the hose was thrown on the ground and the water continued to run across the planking for as long as a half hour, as one witness testified. The weather turned cold, the workmen quit their job early, the water froze on the planks, and the sprinkling of snow that followed concealed the ice from normal view and Mrs. Rosenquist slipped on this ice.
In the defendant's proof it was asserted that the workmen at fault were employees of an independent contractor -- one Berkowitz -- with whom the defendant had entered into an agreement for the completion of certain outside work.
It is said in the brief of the appellant that it was error for the learned trial judge to have denied a motion for a nonsuit on the ground that the negligence of the said employees was that of the independent contractor for which the appellant was not legally responsible. This is inaccurate. At the end of the plaintiffs' case there was no testimony before the ...