McGeehan, Jayne, and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.
The transcript of the testimony in this case portrays an unfortunate episode in the life of Reilly.
While the narrative of the interrelated events may be summarized, yet in the interest of precision it is expedient to quote verbatim et literatim rather liberally from the testimony.
On the evening of Memorial Day in the year 1949 the plaintiff John Reilly resolved to visit a nearby tavern known as the "180 Club" on Wilkinson Avenue in the City of Jersey City. Among its accommodations it contained a semicircular bar which we are informed is not by reason of its spherical form productive of any special hazards in its appropriate use. Wooden stools were advantageously stationed around its contour for the comfort of the patrons.
While the safe use of a stool probably depends particularly upon the capacity of the occupant to respond with alacrity to the deviations of equilibrium, yet our attention has not been invited to any authority holding that stools in a barroom are per se dangerous instrumentalities.
Upon entering at about 10:30 P.M. Reilly recognized among those present his acquaintances Messrs. Moriarity, McGee, and McKitrick in front of the bar with McDermott officiating behind it. Reilly forthwith mounted a vacant stool at the bar, "wrapped his feet around the rungs," and began to achieve the object of his visit. Presently Gillespie, O'Neill, and Gilligan dropped in.
The contingency which immediately attracted attention was that Moriarity was "needling" McGee with unprecedented continuity and persistence. Moriarity's inaugural comments ungraciously pertained to McGee's necktie, then to the latter's "sharp pants," then followed a dissertation concerning McGee's parsimony in which Moriarity proclaimed that "McGee was too cheap to buy a drink and he never did buy a drink and he wouldn't buy a drink for his own brother."
Gilligan supplied the following description of the march of affairs: "It would go on and on. Then it would seem Moriarity would get friendly with McGee; you would think everything was settled and, bingo, he would get sore at him again, and start, 'Ah, you never were any good.' McGee told me, 'I can only take so much.'"
And so Moriarity's "needling," McGee's exasperation, and the chosen beverages all continued to flow until about 1:30 A.M. when Moriarity uttered the remark that McGee had married a "Polack." Physical combat between the two immediately ensued, each made "one swipe" at the other, went into a clinch and while thus struggling, they collided with Reilly, capsizing both him and the stool with which he had been theretofore peacefully and placidly intertwined.
Those who observed the affray experienced some embarrassment at the trial by reason of the following sequence. Reilly sustained a fractured leg, and an ambulance was summoned,
which emergency gave rise to the apprehension that the police might initiate an investigation. McDermott, the bartender, profoundly interested in avoiding any impairment of the reputation of the tavern, induced the others to explain, if officially interrogated, that no strife had occurred, but that Reilly had fallen off the stool. When subsequently summoned to testify at the trial of the present action, they were confronted with ...