On appeal from the Passaic County Circuit Court.
For the plaintiff-appellant, Peter Hofstra.
For the defendant-respondent, William V. Rosenkrans (A. Leo Bohl, of counsel).
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment entered in the Circuit Court of Passaic County upon the granting of a nonsuit in favor of the defendant-respondent, Rose Mazzarella, and against the plaintiff-appellant, Christina War.
At the time of the accident, which is the basis of this action in tort, the plaintiff lived on Maple Street in Paterson, next to property owned by the defendant. On the afternoon of January 2d, 1945, the plaintiff was walking home from work when she slipped and fell on ice which had formed on the sidewalk in front of defendant's house. The point of the fall was at the juncture of the sidewalk with a driveway entering defendant's property.
According to the testimony, that area had recently been subjected to a heavy snowfall. The snow had ceased falling three or four days prior to the accident and had been melting since that time with some intermittent freezing when the temperature fell. There was considerable snow still left on the grounds and buildings at the time of the accident. It was also shown that the ice on the sidewalk was thick on the side away from the street and tapered down toward the curb.
The testimony further showed that the defendant's house was located from 15 to 25 feet back from the sidewalk, and about five feet from the edge of the driveway, which sloped downward to the sidewalk. Along the driveway side of defendant's house, there was a leader drain pipe which was constructed to carry water from the roof into a drain pipe running into the ground by the front wall of the building. Plaintiff's witnesses stated that this leader had numerous holes in it, and that for sometime water had leaked through and fallen directly to the ground alongside the house.
Except for the medical testimony, which is not of concern in this appeal, this description of the circumstances substantially represents the evidence presented by the plaintiff. There was no dispute as to defendant's ownership and control of the premises on which the accident took place. At the close of plaintiff's case, a motion for nonsuit was granted, resulting in the judgment from which this appeal is taken.
Three grounds of appeal are generally relied upon by the plaintiff-appellant. In the first place, it is contended that sufficient evidence was presented to raise a question of fact for the jury, and that the nonsuit was improperly granted. The other two grounds of appeal attack rulings by the trial court which excluded testimony as to repairs made subsequent to the accident, and testimony as to the condition of the premises at a time subsequent to the accident.
The general legal doctrine upon which the plaintiff-appellant relies is that when a person assumes a duty to the general public, albeit a duty he was not bound to assume, he must thereafter discharge that duty with due care. As more particularly ...