Clapp, Goldmann and Ewart. The opinion of the court was delivered by Ewart, J.A.D.
This is an appeal from a judgment of involuntary dismissal entered at the close of plaintiff's case and on defendants' motion pursuant to R.R. 4:42-2 (b) (formerly Rule 3:41-2). The court's decision was based upon failure of the plaintiff's evidence to make out a prima facie case requiring consideration by the jury.
Plaintiff, a girl of the age of 18 years and some months, was employed by Hawthorne Footwear, Inc., a tenant on the third floor of an industrial brick building in the Borough of Hawthorne, which building was owned by the defendant Wagaraw Holding Company and managed and maintained by the defendant Bengar Corporation which also collected rents from the tenants. At about 12:15 P.M. on September 7, 1950, plaintiff, together with five or six other girl employees of Hawthorne Footwear, Inc., was eating lunch while
seated on the steps near the top of an iron fire escape attached to the outside of the building in which they were employed. A fellow employee, one Martha, who was also eating lunch, dropped a towel which landed on a sloping skylight below the second floor landing of the said fire escape; plaintiff volunteered to get the towel and for that purpose descended the fire escape, stepped upon or fell upon one of the glass panels of the skylight and crashed through the same to the first floor, suffering injuries, to recover for which she brought this suit. Whether she stepped upon the skylight, or while leaning from the stone slab to reach the towel, fell into the skylight, is not entirely clear. She testified as follows:
"A. I went down the stairs, walked on the slab. I went in to get the towel. That is all I remember.
Q. You stepped off the slab? A. Well, towards this way (indicating on the picture).
Q. Did you step off the slab? That is what I want to know. A. I can't recall.
Q. You do not know? All right. A. (There was no answer.)
Q. What do you remember next, after that, Mrs. Tahan? A. Well, after that I just remember waking up in the hospital."
A description of the physical conditions of the building, the fire escape, and the practices prevailing with reference to the use thereof, would appear to be essential to a full understanding of the problems involved in this case. It appeared from the proofs, which included a series of nine photographs admitted in evidence and marked respectively Exhibits P-1 to P-9, both inclusive, that plaintiff's employer, Hawthorne Footwear, Inc., was a tenant on the third floor of the three-story brick building in question; that the building is something over 400 feet long and 45 or 50 feet in width; that plaintiff's employer was engaged in the manufacture of ladies footwear, employing approximately 50 girls and 25 men; that access to the third floor is had by means of stairways leading up from the street level inside of the front of the building; that annexed to the outside of the building is an iron fire escape with a landing opposite a doorway [28 NJSuper Page 440] leading into the third floor of the building where plaintiff was employed; that iron steps of the fire escape descend from the third floor landing to another landing midway between the second and third floors on the outside of the building; then another set of iron steps descend to a landing of the fire escape opposite a doorway leading into the second floor of the building; that from the second floor landing of the fire escape three steps descend to a flat stone or concrete slab which caps a parapet wall; and that to reach the ground by means of these fire escapes, one would be required to step from the said stone or concrete slab down a distance of approximately a foot, or less, onto the sloping roof of an adjacent one-story building; thence to walk along the sloping roof of the one-story building on the outside of the parapet wall a distance of 100 feet or more to another iron fire escape which descends from said roof down a set of iron steps into a back yard. The flat stone or concrete capping on the parapet wall above mentioned, and upon which one using the fire escape in descending from the third floor to the second floor would step before reaching the roof of the adjacent building, is located approximately six feet distant from the outside wall of the brick building to which the fire escape is attached. It is a brick parapet wall, topped or capped by terra cotta; runs parallel to the main wall of the building in which plaintiff was employed, about six feet distant therefrom; and extends some 24 inches in height above the roof of the adjacent building. Between this parapet ...