Eastwood, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D. Francis, J.A.D. (dissenting).
[28 NJSuper Page 102] The mishap in consequence of which this action was instituted occurred in the building of the Union Laundry Company at the corner of Patterson Avenue and Broad Street in the Borough of Shrewsbury on the early afternoon of July 26, 1952. The plaintiff, Louise Overby, sought to recover from the company compensatory damages for the bodily injuries she sustained in the mishap. Her husband, John A. Overby, sued per quod. The motion made at the conclusion of the plaintiffs' evidence for an involuntary
dismissal of the action was granted and a conformable judgment entered, from which the plaintiffs appeal.
The pretrial order reveals concisely the theme of the alleged cause of action:
"Plfs contend that the plf Louise on July 26, '52, entered the place of business of deft in Shrewsbury, N.J. as a customer and that she slipped on the slippery floor and injured herself. Plfs further allege the floor had been recently waxed and was done carelessly and negligently; the wax being soft and slippery. Plf claims personal injuries and expenses and the plf John as husband of the plf Louise files his derivative claim; plfs alleged that the plf Louise fell at a point about one step inside the front door."
The only testimony introduced at the trial to establish the allegation that the floor had been carelessly and negligently waxed came from Mrs. Overby. It is laconic and may be conveniently quoted:
"Q. Will you tell us the manner in which you entered the laundry and what happened? A. Well, I stepped into the laundry on my right foot and went to make a second step with my left foot, and my right toe slipped from under me and I went down on my right knee.
Q. What kind of shoes were you wearing? A. I had barefoot sandals on, no stockings.
Q. In that type of shoe, is the toe covered or protected, or open? A. No, there is just a leather sole with one strap between my big toe -- my first and second toe, and strap across my heel and over my instep.
Q. You put that foot down and it slipped, is that right? A. That's right.
Q. Did any part of your foot strike the saddle or sill of the entrance as you stepped in? A. No, it didn't.
Q. Will you tell us what you observed? A. Well, where I had slipped I had made a skid mark on the floor, and there was a scraping left on the floor from where I had skidded, and I sat there and I looked around the edge and around the edge near the baseboard and spots on the floor near the counter, you could see where it was dull, a dull soft-looking finish, it wasn't polished completely like the middle of the floor. The middle of the floor was shiny, glassy-looking.
Q. You speak about a skid mark. Can you tell us specifically the length and width of that mark? A. Well, I would say it was
about an inch wide and about a foot, a foot and a little over in length.
Q. And when you went out, as you went by the place did you pass over the spot where you fell as you left the place? A. Yes, I did. I took my foot and rubbed it on the edge, and ...