Jacobs, Donges and Bigelow. The opinion of the court was delivered by Donges, J.A.D.
The defendant appeals from a judgment in the Law Division of the Superior Court, entered upon a verdict in favor of the plaintiff.
The defendant argues that the court below fell into error in submitting to the jury the question of defendant's liability,
and, further, that the court was in error in its charge concerning the theory of nuisance in the case. The defendant further contends that the verdict was against the weight of the evidence.
It appears from a careful review of the record that the injuries complained of resulted from a fall of the plaintiff while emerging from a bathtub, provided by the defendant for her use, in common with other guests of defendant's Inn. It is not denied that plaintiff was a paying guest of defendant's Inn.
Plaintiff arrived at defendant's Inn on January 15, 1948, and stayed there continually until after the accident complained of, which occurred the night of January 26, 1948.
Plaintiff's room had no bath facilities, and she was invited to use a bathroom in common with other guests of the Inn.
Due to a cold, plaintiff had not taken a tub bath until the night of the accident, but had used the other facilities of the bathroom over a period of 9 or 10 days. She testified that during this entire period, including the night of the accident, there was no bath mat in the bathroom.
Plaintiff entered the bathroom on the night of January 26, 1948, for the purpose of taking a tub bath. She brought with her two towels, one for the floor and one with which to dry herself. After cleaning the bathtub, she placed one towel on the floor and then proceeded to bathe. After the bath, she dried the upper portion of her body while she was still in the tub. As she was emerging from the tub, she placed her right foot on the towel, and, she testified, when she placed her left foot on the towel, the towel "skidded" from under her and she fell on her side, suffering the injuries complained of.
Plaintiff further testified that when she was able, she arose from the floor and looked to see what caused her fall. She picked up the towel and noticed several "skid" marks which she said were about 3 or 4 inches long and about 2 inches wide. She further said that the floor was unevenly waxed and there seemed to be ridges or "indentations" in the wax. She described the wax as being soft. She further testified, that during her entire stay at the Inn, the floor was in a waxed state.
Celia Bernstein testified on behalf of the defendant that she was a guest at the Inn but had left prior to the day of the accident. She stated that during her stay at the Inn, ...