Goldmann, Waesche and Knight. The opinion of the court was delivered by Goldmann, S.j.a.d. Waesche, J.A.D. (temporarily assigned) (dissenting).
Plaintiff instituted an action to recover damages for personal injuries resulting from a fall on defendants' premises. The jury returned a verdict of no cause of action, and plaintiff appeals from the accordant judgment.
The accident happened on Christmas Eve 1955. Plaintiff was a tenant in a two-family duplex dwelling owned by defendants who lived in the other part of the structure. The entrance doors to the two apartments faced toward the rear. There was a canopy or sloping overhang, measuring about 5' x 4', over each door and two-step porch. A concrete walk ran the full length of the premises, past plaintiff's and defendants' doors, and joined another walk leading at right angles back to a garage or shed where there was a garbage pail supplied by defendants for their own and plaintiff's use.
There had been a fall of snow sometime previous to December 24, and defendants had cleaned the walk over its entire width. However, snow remained on the grass, roofs and canopies. It drizzled for a while on the morning of December 24, followed by a thaw, so that water dripped from the canopies onto the walk. It appears there was a slight depression in the walk directly in front of defendants' porch and that a small amount of water gathered there. Plaintiff and her son, as well as defendants, had used the walk during the day. The son testified that when he left the house at 1 P.M., and again on his return at about 3 P.M., he noticed that the walk in front of defendants' door was wet with water dripping from the overhang. He went past the same spot at 6 P.M. and slipped; he found that the
dripping water had begun to freeze, but he did not mention this fact to defendants.
Plaintiff also testified to the dripping from the melted snow on the canopy, and to the wet condition of the walk in front of defendants' door when she passed that way at 3 P.M. At about 9:30 that evening she left her apartment to empty some garbage in the pail located in the garage. She noticed what looked like water in front of defendants' door, but which was actually ice. She slipped on the ice, fell on her back and head, and suffered the injuries complained of. She doesn't know how long she lay there, but when she came to she somehow managed to get to defendants' door, rang the bell, and told them of the icy condition. Plaintiff has been under medical attention ever since.
Defendant Frank Maly had noticed a glaze of ice in front of his door at 6:30 A.M. He, too, testified there was a thaw during the morning and afternoon. He said he noticed the snow on the canopy, melting and dripping down. The sidewalk remained wet all day. The last time he had occasion to go outside his apartment and onto the sidewalk was between 5 and 6 P.M. and he observed no ice adjacent to his steps at that time. He remained in the house all evening until he answered plaintiff's ring at about 10:30 P.M. It was then he saw the ice glaze on the walk. Asked on cross-examination if he would say there was never any ice on the walk in front of his entrance, he replied he could not say that.
Maly's wife, the co-defendant, remained in the house after returning home late that afternoon. She stated that ever since the sidewalk was installed, some eight years before, there had never been an occasion when water or ice collected in front of her door.
Plaintiff contends there was error when the trial judge, in the course of his charge, said there would be no liability if the accident had happened on a public sidewalk. The remark was purely incidental and contrastive, for he at once went on to say that the sidewalk with which the court and jury were concerned was entirely upon defendants'
property, and was used in common by them and their tenant. In that situation, he said, "the law imposes upon the landlord the obligation of using reasonable care to have the premises reasonably safe for the purpose intended." Nor was there error, as plaintiff argues, when the trial judge said, "We are not dealing with a large tenement house or a large apartment house with great numbers of people walking back and forth." This, again, was purely by way of contrast, for he made clear that what was involved was a two-family house, occupied by only one tenant and the owner.
Read in context, neither reference was objectionable. Consideration of the charge in its entirety leaves no room for concern that the jury may have been misled. The passing references by the trial judge, read in the context of the entire charge, could not rationally have involved the jury in a consideration of irrelevant matters.
Plaintiff cites several cases in an attempt to persuade us that the injection of these matters was error. Upon examination we find that they dealt with situations where there was an erroneous charge, or an accurate statement of the law coupled with an erroneous charge. See, for example, Guzzi v. Jersey Central Power and Light Co. , 12 N.J. 251, 260 (1953); Davidson v. Fornicola , 38 N.J. Super. 365, 371 (App. Div. 1955); Friel v. Wildwood Ocean Pier Corp. , 129 N.J.L. 376, 378 (E. & A. 1943).
However, error is laid to another part of the charge where the court said:
"* * * There has been some talk about leaders and gutters and things of that sort, which is wholly immaterial, because you don't have to have any gutters or leaders on your house if you don't want them. There is nothing that obligates you to do it in any respect. In this particular case we are talking about a little overhang only three or four or five feet wide over the back steps. You will see that in the photographs. And nobody, not even the expert produced on behalf of the plaintiff, says that there should have been a gutter there. And whether there should or should not is entirely beside the point; there is no allegation of any improper construction or anything of that sort. We are only concerned with whether or not this dangerous condition, if there was one, existed for such a length of time that Mr. and Mrs. Maly should have
known about it and done something about it. So you don't have to worry about gutters or leaders or anything of that nature."
Plaintiff's counsel duly excepted to the language used by the court. We find reversible error in this aspect of the charge. The facts as stated are inconsistent with the record, and the court erred in its statement of the law.
The trial judge was mistaken when he told the jury there was "no allegation of improper construction or anything of that sort" in the case. True, the original complaint did not allege improper construction of the overhang. However, this issue was anticipated, at least by implication, in the statement of defendants' contentions set out in the pretrial order. And if there be any doubt on this score, the issue was definitely made a part of the case when, after counsel's opening, the court permitted amendment of the pretrial order to include "improper construction that there was no gutter across the roof," and this after defendants' attorney frankly admitted there was no surprise, in light of his telephone conversations with opposing counsel. It need hardly be stated that this amendment, correctly allowed, made the issue of improper construction as much a part of the case as if included in the pleadings. That issue was actually tried. Indeed, defendants in their brief agree it was one of the issues to be determined at the trial.
The further statement by the court in its charge that plaintiff's expert did not say there should have been a gutter on the overhang does not accord with the record. The expert, a builder of houses and general contractor, said in answer to the trial court's direct question whether there was any standard requiring a gutter for an overhang of the type involved in this case, that there was such a standard, and this roof was a little too large not to have a gutter. The custom of the building trade, he went on to say, was to put a gutter on a roof 20 square feet or more in area, and this canopy was close to that figure.
Thus, the factual issue of improper construction was squarely presented at the trial. The court sent the case to
the jury on the single issue of whether defendants had constructive notice of any dangerous condition upon the sidewalk, no actual notice having been shown. Whether or not this limitation on the jury's consideration of the case was error depends on the correctness of the court's statement in its charge that there was nothing in the law requiring a person to have gutters or leaders on his house. The trial judge was under the impression that there were "plenty of cases" in New Jersey on point. He apparently was referring to those dealing with injury suffered by the user of a public sidewalk and holding that an abutting owner is under no duty to construct a drainage system upon his building for the purpose of preventing an accumulation of rain or water from running across the public sidewalk and freezing. E.g., Saco v. Hall , 1 N.J. 377, 380 (1949); Millar v. United Advertising Corp. , 131 N.J.L. 209, 211 (E. & A. 1944); Zwickl v. Broadway Theatre Co. , 103 N.J.L. 604, 606 (E. & A. 1927).
As contrasted with the above rule, defendants owed plaintiff, as their tenant, a duty to exercise reasonable care in keeping the walk in a reasonably safe condition. Had the injury been caused by the maintenance of a defective drainage system, the jury would have been justified in returning a verdict for plaintiff. Turzay v. Berkowitz , 125 N.J.L. 61 (Sup. Ct. 1940); DeMateo v. Perano , 80 N.J.L. 437 (E. & A. 1910); and see, generally, Annotation, 26 A.L.R. 2 d 610 (1952). It is not logical to deny recovery simply because no drainage system had been provided, if failure to do so resulted in a breach of defendants' duty to maintain the walk in a reasonably safe condition.
There was sufficient evidence from which the jury could have found that defendants, in not installing a gutter on the canopy, failed to act as reasonably prudent persons would in the circumstances, and so brought about the icy condition of the walk which caused plaintiff to sustain injury. It was therefore error to withdraw from the jury that part of the case relating to negligence by reason of improper construction.
This conclusion makes unnecessary any consideration of plaintiff's contention that the trial court erred in failing to charge the jury in certain requested particulars.
WAESCHE, J.A.D. (temporarily assigned) ...