On appeal from a judgment of the Passaic County Circuit Court.
For the plaintiff-appellant, Ward & McGinnis and Louis Friedman.
For the defendant-respondent, Reid, Kelly & Flaherty and Charles C. Stalter.
The opinion of the court was delivered by
DONGES, J. This is an appeal from a judgment entered in the Passaic County Circuit Court by direction of the trial judge. Plaintiff, on December 21st, 1945, was a patron or guest in the tavern of the defendant, Manuel Steinfeld, in the City of Paterson. He had been attending a Christmas party where he had several drinks and had a few more in the saloon. He was seated on a stool at the rear end of the thirty-two feet long bar and leaned his head on his hands on the bar and fell asleep. Another patron, alleged to have been Richard Grimes, gave plaintiff what is known as the "hot-foot" by inserting matches in his shoes and lighting them, the idea being apparently that he would be awakened by the feeling of heat upon his foot through the shoe. However, the plaintiff seems to have been so intoxicated that he did not feel the heat, and third degree burns were inflicted upon his foot. His trousers, sock and underwear burned and
smouldered, and the odor of the fire attracted the attention of another patron who extinguished the fire. Plaintiff says the defendant then put him out on the sidewalk, but this is denied by defendant and not corroborated by any of the witnesses who were in the premises at the time.
Plaintiff brought suit against Steinfeld, the owner, and against Grimes, the alleged perpetrator of the prank. Grimes filed no answer but did appear as a witness for the defendant. He admitted being in the premises at the time in question but denied doing the act, seeing anyone else do it or knowing anything about it. There was evidence that he had admitted doing it. The trial judge, on motion, directed a verdict in favor of the defendant tavern owner and submitted the case to the jury as to Grimes against whom a verdict of $2,500 was returned.
The trial judge, in explaining his ruling to the jury, said that the duty of the tavern keeper was to use reasonable care to protect his guests from obvious dangers and from assault if one were imminent, but he held there was no evidence to connect the defendant with the incident, and "nothing in the evidence to make it appear that he would have any knowledge that any harm was going to come to this man, or that any assault was to be committed upon him." Further, he said, "Now, there is nothing in the evidence that would disclose that Mr. Steinfeld knew that this hot-foot was to be given or that he actually saw it given, or anything of that sort. * * * and there is nothing at all to connect him with the case except the one bare statement of Detective DeLuccia, who, if you will recall, said that about a week after this occurrence took place * * * he went around to see Mr. Steinfeld and Mr. Steinfeld said that he was present, and that he had seen the hot-foot given, and that Mr. Grimes did it. Now, that is all there is in the case to connect him with it at all in any respect, and no matter what weight you choose to give to that, it is nothing but a scintilla of evidence upon which a legal verdict could not possibly be based."
The question presented on this appeal is whether, under the rule of law applied to the case by the trial judge, and
apparently agreed to by the parties, there was more than a scintilla of evidence that the defendant failed to do something that he could and should have done to protect the plaintiff from the assault and injury he suffered. The plaintiff points to and relies upon the testimony of Detective DeLuccia, which the trial judge ...