McGeehan, Jayne, and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.
The mishap in which the plaintiff sustained a bodily injury for which he sought the recovery of compensatory damages occurred on the evening of April 6, 1950, at the roller skating rink conducted by the defendant on Nineteenth Avenue in the City of Paterson.
At the conclusion of the introduction of the evidence by both plaintiff and defendant, the trial judge, on motion, directed the entry of judgment in favor of the defendant. The propriety of his judicial action in that particular constitutes the subject matter of the present appeal.
Ordinarily proof of the mere occurrence of an injurious mishap is not legally productive of an inference of negligence. Normally the presumption is to the contrary. Negligence is not an imaginative notion; it denotes elements of factuality. McCombe v. Public Service Railway Co. , 95 N.J.L. 187 (E. & A. 1920); Oelschlaeger v. Hahne & Co. , 2 N.J. 490 (1949); Callahan v. National Lead Co. , 4 N.J. 150 (1950); Layton v. Healy , 12 N.J. Super. 459 (App. Div. 1951).
Elementary also is the principle that the duty to prove negligence rests on the shoulders of the party who alleges it, and so it has been stated with conspicuous frequency that where the evidence is equally consistent with the absence of negligence as with the existence of negligence on the part of the defendant, the plaintiff cannot prevail. Alvino v. Public Service Railway Co. , 97 N.J.L. 526 (E. & A. 1922);
Vollkommer v. Menge , 116 N.J.L. 82 (Sup. Ct. 1935); Callahan v. National Lead Co., supra.
Whenever we are confined to the consideration of purely circumstantial evidence, the contrast between the absence or existence of negligence often becomes exceedingly subtle where the mishap is of a variety known occasionally to occur to one in the absence of any negligence on the part of another. Such situations are not uncommonly observed when the injured person has chosen to engage in some sport or pursue some type of amusement or entertainment to which certain known risks are normally incident. Vide, Gardner v. G. Howard Mitchell, Inc. , 107 N.J.L. 311 (E. & A. 1931); Young v. Ross , 127 N.J.L. 211 (E. & A. 1941). Does not the pleasure of skating inhere in one's physical ability gracefully to defy the law of gravitation? Gravity so challenged oftentimes triumphs, even over the most skillful performers and amid the most unobjectionable accommodations; hence the apparent need for the maintenance of the first-aid room at skating rinks.
There is no doubt that one who conducts a skating rink is not an insurer of the safety of the patrons. It is equally indubitable that one who engages in such a business is under the duty to exercise ordinary care to render and maintain the premises which are devoted to that use reasonably safe and suitable for such intended purpose.
The circumstances of the present case in their factual setting are significantly and distinctly dissimilar to those presented in Griffin v. De Geeter , 132 N.J.L. 381 (E. & A. 1945); Clayton v. New Dreamland Roller Skating Rink, Inc. , 14 N.J. Super. 390 (App. Div. 1951).
In the appendix we perceive the endeavors of counsel for the plaintiff to establish, if possible, to a prima facie degree the liability of the defendant for the plaintiff's misadventure either upon the basis that the surface of the skating area was structurally faulty or that the defendant was guilty of a culpable dereliction in the supervision and maintenance of it. The contention on behalf of the plaintiff is expressed
in the pretrial order as follows: "The defendant operates a skating rink or arena and the plaintiff slipped, stumbled and fell to the floor by reason of the slippery floor, which was dangerous, causing him to ...