McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.
By way of a preface to the discussion of the subject matter of the present appeal it is informative to disclose that the plaintiff instituted this action ex delicto against the executrices of the will of Charles M. Herman, deceased, and against the Asbury Park National Bank and Trust Company. At the inception of the trial the plaintiff submitted to a voluntary dismissal of his alleged cause of action against the latter defendant, and at the conclusion of the evidence introduced by the plaintiff and the defendants, the trial judge directed the entry of a judgment in favor of the executrices of the estate of the decedent. The propriety of the action of the trial judge in the respect last mentioned is the basic subject transported to us for determination.
The evidence described the occurrence of a very unfortunate mishap. For present purposes the narrative need only be summarized.
One Charles M. Herman, the mortgagee of the premises known as the Hotel Whitfield at Ocean Grove, Monmouth County, was destined to reacquire the ownership of the property, and he engaged the services of the plaintiff, a carpenter, to make certain alterations of the building to conform with the governmental fire protection requirements applicable to hotels of such conformation.
One of the proposed alterations involved the conversion of a window on the fourth floor of the west wing of the building into a doorway opening on the platform approximately four feet by four feet of an iron fire escape which for some period of time had existed beneath the window and formed a bridge over the alleyway which separated the two wings of the hotel building. It was intended to provide an emergency passageway from the west wing to the roof of the east wing and to the ladder of a fire escape leading to the ground.
On June 7, 1950, while pursuing a preliminary examination of the proposed alterations, Mr. Herman first stepped
out of the window onto the platform of the fire escape, and when the plaintiff, who immediately followed him, came upon it, the platform collapsed. Both Mr. Herman and the plaintiff fell to the surface of the alleyway beneath, resulting in the death of Mr. Herman and bodily injury to the plaintiff.
The paramount question projected for solution by the present appeal pertains to whether in the existing state of the evidence voluntarily and purposefully introduced by the plaintiff, and in view of the theory and hypothesis of liability upon which the case was presented, the plaintiff can now avail himself of the rule of res ipsa loquitur.
In limine , we cogitate the significance of the following colloquy between the court and counsel for the plaintiff at the trial:
"The Court: Do you maintain that the theory of res ipsa loquitur is controlling?
"Mr. Laird: I say I could have utilized it. I have not proceeded on res ipsa loquitur. I have produced to this Court direct evidence. Res ipsa loquitur is where there is no direct evidence available and the plaintiff is ...