On appeal from the Bergen County Circuit.
For the plaintiff-appellant, Siegler & Siegler (Irving Siegler, of counsel).
For the defendant-respondent, Cox & Walburg (William H. D. Cox, of counsel).
The opinion of the court was delivered by
BURLING, J. This is an action at law sounding in tort based upon the alleged actionable negligence of the defendant. The ground of appeal is: "because the trial court erroneously entered a judgment of nonsuit at the close of the plaintiff's case on motion of the defendant."
It is well established that on a motion for a nonsuit the defendant admits the truth of the plaintiff's evidence and of every favorable inference fairly to be deduced therefrom, but denies their sufficiency in law.
From the stipulation of the defendant-respondent, it appears he held a license to operate a tavern and did so operate one at No. 2 Belmont Avenue, in the Township of Garfield, County of Bergen, New Jersey, on the 15th day of May, 1945, the date of the event hereinafter referred to. From the evidence it appears that the plaintiff-appellant was a shoe salesman, who sold shoes by canvassing from house to house. A customer suggested to him that he call upon Mrs. Ludwig, wife of the defendant-respondent, and as a result of this suggestion, he called at the aforesaid tavern where she was
standing behind the bar and busily engaged. She said to the plaintiff, "Would you do me a favor and come around some other time?" About two weeks thereafter he returned to the tavern, on May 15th, 1945, for the purpose of making a sale of shoes to Mrs. Ludwig. She bought a pair of shoes from him. So far as the testimony shows, the sole purpose of the plaintiff in entering the tavern was to make a sale of shoes to Mrs. Ludwig. After making the sale, the plaintiff said to Mrs. Ludwig: "Mrs. Ludwig, may I go to the men's room?" to which she replied, "Yes."
To use plaintiff-appellant's words, then this occurred: "So I walked back, thinking it was on the right side, and as I walked back she hollers, she said, 'No, it is in the corner; it is in the corner.' Well, I didn't look, I simply walked right on, and opened the corner door, which was dark, and, just about as I put my foot in, the air, you might say, she hollers, 'That is the wrong place.' But it was too late, because I thought I was stepping on a floor, and that I was stepping in the space; and I just went right down about ten feet. It was dark in there, and you couldn't see. As I opened the door, it was dark." He fell down the cellar stairway to the basement and sustained injuries.
At the end of the plaintiff-appellant's case, the motion was made on behalf of the defendant-respondent, Kurt Ludwig, for a nonsuit upon two grounds: First, that there was no evidence of negligence upon the part of the defendant, Kurt Ludwig, and second, that the plaintiff was guilty of contributory negligence as a matter of law. After argument, the motion for nonsuit was granted by Circuit Court Judge J. Wallace Leyden. It is from the judgment following this ruling of the court that the present appeal is taken.
In granting the motion the court stated:
"Now I think the case stands or falls upon the argument of Mr. Cox that he was not in there on the invitation of the owner; he didn't come there to drink; he went there to sell shoes. And the mere fact that the owner of the premises may have passively acquiesced in the use of his ...