Clapp, Jayne and Hughes. The opinion of the court was delivered by Jayne, J.A.D.
It was on Sunday, July 30, 1950 that the plaintiff, then 17 years of age, in company with Margaret Ulbich and Frances Azzolini, was escorted by Patrick Greene at 10 o'clock in the forenoon to the recreation grounds conducted for profit by the defendant in Paramus, Bergen County. It is said that a merry heart goes all the day. It was about 6 o'clock in the late afternoon when the mishap to which this litigation relates occurred on the premises.
The defendant's site is evidently a popular locality during the summer season, normally attracting as many as from two to three thousand patrons on Sundays. Among its attractions is a relatively spacious swimming pool in which at a point some 50 feet from the shore is stationed a raft for diving, having the dimensions of about 30 feet in length and 18 feet in width. Four or five lifeguards are in attendance.
The plaintiff and her young friends were swimmers, and throughout the day they periodically enjoyed the use of the pool. It seems to have been observable that boys would at times engage in the frolicsome exhilaration of pushing each other unexpectedly off the raft. See exhibit of posted safety notice.
As the hour of 6:00 approached and the number of swimmers had lessened, the plaintiff and her friends swam
to the raft, where the plaintiff was seated when some boys began the antics heretofore mentioned. In consequence, the plaintiff resolved to leave the raft. She dove into the water and had not yet ascended to the surface when a boy was playfully propelled off the raft. His chest collided under water with the plaintiff's head, rendering her temporarily unconscious and causing her, it is alleged, permanent bodily injury.
Somewhat oddly, her present action to recover from the defendant compensatory damages for her injuries and losses so sustained was not instituted until December 12, 1955. She therein accused the defendant of failing reasonably to protect her safety. The verdict of the jury awarded her $25,000 damages.
In the appellate consideration of one of the points specified for the reversal of the judgment, it becomes pertinent to note that the defendant expressly averred in its answer, with iteration in the pretrial order, that the plaintiff knowingly and voluntarily assumed the risk that imperiled her and failed to exercise due care for her own safety, yet no mention whatever of those defenses was embodied in the court's instructions to the jury. Correlatively, it is apparent that no request to treat those defenses in the charge to the jury was presented to the court, and moreover no objection was registered at the trial to the court's omission to do so.
We deemed it advantageous to write briefly concerning a somewhat analogous occurrence in Gabriel v. Auf Der Heide-Aragona, Inc. , 14 N.J. Super. 558 (App. Div. 1951). Following pertinent quotations from the cited authorities (14 N.J. Super. at pages 563 et seq.) we issued the comment:
"We conceive it to be at least the conventional function of the judge even in the absence of requests of counsel intelligibly to present to the jury the material and substantial issues of fact disclosed by the pretrial order, drawn into controversy by the conflicting, divergent and contradictory evidence adduced at the trial and to be submitted to the jury for determination, together with instructions in the law adapted to the consideration of such issues. How otherwise may we be confident that the jury distinctly recognized any such issue and deliberately resolved it?"
While we continue to advocate the "conventional function of the judge even in the absence of requests of counsel," to which we then alluded, we neither did then, nor do now, regard even a material omission in a charge, in the absence of an appropriate request, as constituting in itself alone a reversible error on appeal.
Experience has induced us to recognize that pleaded issues which are not prominently projected by supporting evidence, nor earnestly debated by the attorneys at the trial, may inadvertently elude the attention of the most circumspect judge. The author of this opinion stated in his dissenting opinion in Marzotto v. Gay Garment Co. , 11 N.J. Super. 368, at page 384 (App. Div. 1951):
"But in reviewing judicial action on appeal, the unity of pragmatical acceleration and academic precision may be recognized as a cherished ideal, but during the period of progression toward that visionary destination, the limitations ...