Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiff sued to recover damages for injury to his fingers suffered while he was helping defendant Martinez assemble lengths of iron pipe on defendant's premises. The action against the insurance company under the second count of the complaint was discontinued at pretrial. The Law Division granted defendants' motion for judgment of involuntary dismissal at the close of plaintiff's case, and plaintiff appeals.
Plaintiff and Martinez had moved into nearby houses in a new development in Totowa some two years before the occurrence in question. Prior to the accident they helped each other with various projects on their respective premises. Plaintiff and his wife were at the Martinez home on Sunday afternoon, August 2, 1953, arriving at 1:00 or 1:30 P.M. Plaintiff gave as the reason for his presence there the fact that Martinez had asked him to help assemble a 45-foot length of pipe that would be used as part of a fence defendant intended erecting. The two had done some work on the project before the day in question, plaintiff having helped Martinez mix cement and build a retaining wall. Work on the pipe began immediately after plaintiff arrived. They measured the pipe into seven-foot lengths, cut and threaded each piece, and then proceeded to assemble them by screwing one section into another atop a cinder-block wall. Plaintiff would grip the pipe near the assembling end with a wrench in his left hand, and hold the rest of the pipe with his right.
Martinez would start screwing the new section into the pipe which plaintiff was holding on top of the wall. Plaintiff said that when the threads got close to the end and the assembling of the two lengths became more difficult, Martinez would tell him to hold on because he was going to give the pipe a "good hard turn." Plaintiff would then grip the pipe firmly while Martinez gave the new length several hard turns so as to make a tight join. This warning was given by Martinez on the first and third lengths of pipe; it appears that plaintiff himself screwed in the second length. The accident happened when the fourth section was being screwed in. Martinez told plaintiff to keep an eye on the assembled pipe so that it would not go off the wall. He was standing close to and behind plaintiff, so that at the moment plaintiff could not see what he was doing. Plaintiff testified that Martinez gave him no notice or signal that he was going to tighten the pipe, so that he could brace himself and hold the pipe in a tight grip. What happened can best be described from the record:
"Q. Now, tell us what happened then. A. Well, I was holding on to the pipe and all of a sudden there was a hard jar in the pipe there. It happened so fast. Knowing that the pipe on the end of the wall would start to go off, I tried to hold it with my right hand. I had my right hand between the cinder blocks and I tried to hold it but it was too heavy for me to hold. The pipe slid off the wall and cut my finger and broke the end right off, and cut the other finger, too, and scraped the nail half-way off on it."
Martinez at once drove plaintiff to the hospital. As he drove out of his driveway he said: "Gee, Sam, I am sorry. I should have told you to hold on." And when he took plaintiff to the doctor's office the next evening he again said he was sorry the accident happened and that he should have told him he was going to give the pipe a hard turn.
Plaintiff was the only witness who testified on the question of liability. At the close of plaintiff's case defendants moved for dismissal on two grounds: (1) contributory negligence as a matter of law, and (2) plaintiff was a social guest. The court granted the motion on the latter ground.
Defendants now concede that plaintiff was not guilty of contributory negligence or that he had assumed the risk, as a matter of law. They defend the appeal strictly on the ground that plaintiff was a social guest and Martinez was not guilty of inflicting willful injury on him.
Plaintiff claims there was error in granting the motion for involuntary dismissal: there was a jury question as to whether, at the time of the injury, he enjoyed the status of an invitee; defendants owed him the duty to use reasonable foresight to prevent harm to him as invitee; even if plaintiff were a mere social guest or licensee, defendants owed him a duty to use reasonable care to avoid injuring him through active negligence; and there was evidence of such active negligence requiring the issue of negligence to be sent to the jury.
Defendants' motion admitted the truth of plaintiff's evidence and every inference which might logically and legitimately be drawn therefrom in his favor.
Both parties invite us to consider the status of plaintiff at the time of the accident -- was he an invitee or a social guest? This implicates a vast range of textual material and decisional law, much of it concerned with the Procrustean exercise of fitting into one category or another a person who comes upon another's land: invitee, licensee, social guest, business visitor, trespasser. Were we inclined to accept the approach suggested by the parties on this appeal, we would hold that the question of plaintiff's status at the time of the injury was one that should have been left to the jury for determination. It might well have concluded that plaintiff was an invitee who had come upon the premises for the express purpose of assisting defendant in constructing the pipe section of the future fence -- a matter of some advantage to defendant -- and therefore defendant owed him the duty of exercising reasonable care in the ...