Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
This is an appeal by the defendant from a judgment for the plaintiffs entered on a jury verdict in a tort action.
About 2:30 P.M. on February 8, 1953 the plaintiff Frances Pona, a high-school girl of 14, with three other girls, paid the admission fee and was admitted to the indoor rollerskating rink owned and operated by the defendant in Bayonne, New Jersey. The actual skating rink is surrounded by an iron railing with a baseboard eight to ten inches high, in which railing there are six openings through which patrons enter and leave the skating floor. Along the walls are benches, and the area between the walls and the iron railing, about nine feet in width, serves as an aisle or passageway from the back to the front of the building where there is a refreshment stand.
The plaintiff estimated that there were about 200 skaters at the rink that afternoon. About 4 o'clock she was leaving the skating area to go and rest on one of the benches. She slowly skated through one of the exits and had gone about three feet toward the bench when a paper cup caught in a wheel of her left skate, causing her to fall and sustain injuries to her ankle and foot.
The defendant developed on cross-examination of the plaintiff that at least half an hour before the accident, she had noticed wrappers and paper cups in the area between the rink and the benches, that she knew it was dangerous to skate in that area, but that she did not report the littered condition to the defendant. In response to a question as to why she used that particular exit when she knew the litter on the floor made the area dangerous, she replied: "Because that was the first exit I came to, and I was tired. I wanted to sit down."
There was also testimony that a skating number had just ended when the plaintiff went through the exit; that after every number there is a "clear the floor" signal upon which all skaters are required to leave the floor; that on the particular "clear the floor" signal when the plaintiff went through the exit some 200 skaters were leaving by various exits, perhaps 50 by the exit the plaintiff used, about 15 or 20 of whom were behind her.
One of the girls who came to the rink with the plaintiff testified that she had used all six exits and that there was a similar accumulation of paper wrappers and cups along both aisles.
The defendant was charged with negligence in the maintenance of the premises and in failing to provide suitable and sufficient receptacles for debris. The defendant denied the charges and asserted that the plaintiff had assumed the risk and was guilty of contributory negligence. At the trial, the defendant's motion for dismissal of the plaintiff's suit was denied and the issues were submitted to the jury which returned verdicts for the plaintiffs. The defendant moved for a new trial on the above grounds and also on the ground that the verdict was clearly against the weight of the evidence, the result of passion, prejudice and sympathy, and excessive in amount. The court denied the motion and this appeal ensued. The defendant now argues that the court erred in denying its motion for involuntary dismissal and in its charge to the jury.
The operator of a skating-rink is under a duty to exercise ordinary care to keep and maintain the premises reasonably safe and suitable for its intended purpose, including the approaches, aisles and floors. Griffin v. DeGeeter , 132 N.J.L. 381 (E. & A. 1945); Clayton v. New Dreamland Roller Skating Rink, Inc. , 14 N.J. Super. 390 (App. Div. 1951); Gaffney v. America on Wheels , 16 N.J. Super. 484 (App. Div. 1951).
On this appeal, the defendant's negligence is assumed and is not argued. The essential question is whether the court
erred in submitting the issues of assumption of risk and contributory ...