Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiff Lucille Benton sued for injuries suffered when she slipped and fell on the stairs leading from defendant's swimming pool. Her husband sued per quod. The answer set up the defenses of contributory negligence, assumption of risk, and immunity from liability because of defendant's status as a charitable institution. Defendant moved to dismiss the action on all three grounds at the close of plaintiffs' case. The trial court granted the motion, giving as its reasons the charitable immunity of defendant and plaintiffs' assumption of risk. Plaintiffs appeal from the resultant judgment.
Mrs. Benton had been a member of the Westfield YWCA for about two years before the date of the accident. The YWCA and defendant YMCA, both admittedly charitable institutions, had an arrangement whereby YW members were permitted to use facilities in the YM building, the cost being apportioned between the respective associations. YW members used the YM swimming pool at specified times during the week.
Plaintiff had been attending the YM swimming pool almost every Thursday evening. On the evening in question she went swimming about 8 P.M. She donned her swimming suit, took the required shower in the ladies' shower room, went down a flight of steps to a short passageway or tunnel, proceeded through the tunnel and then ascended another flight of some 12 steps and passed through a door to the swimming pool. The steps were covered by pads of an undetermined substance. A number of women used the pool that evening.
Plaintiff and a friend left the pool at 9:25 P.M., others having preceded them. As plaintiff started to descend the stairs leading from the pool to the tunnel she grasped the handrail on the left, but as she took her first step the stair pad slipped from under her and she fell down the entire
flight, suffering a spine injury. Her testimony, as well as that of her two witnesses, was that the steps were always wet; some of the pads were warped by dampness; others were completely off, and some half off. Plaintiff did not know that the top step mat was loose until she felt it go out from under her. On the evening of the accident, and also prior thereto, the drains in the women's shower room were clogged, so that there was about three or four inches of water through which swimmers had to walk before reaching the stairs leading down to the tunnel. Plaintiff stated that the described conditions existed from the time she first started using the pool and she had complained of them to a YW representative on numerous occasions. However, nothing had been done to correct them.
We take note of several elements in this factual context. The steps and tunnel were the only means of passage between the shower room and the pool. Others had used the steps without incident. Plaintiff had grasped the handrail as she started down the steps to the tunnel. Where contributory negligence or assumption of risk do not clearly and conclusively appear as a fact, or as a necessary and exclusive inference to be drawn from undisputed facts by reasonable men in the exercise of a fair and impartial judgment, there is no warrant for removing those questions from the consideration of a jury. Rapp v. Public Service Coordinated Transport, etc. , 9 N.J. 11 (1952); Bacak v. Hogya , 4 N.J. 417 (1950). Dismissal of a negligence action by the trial court on the ground of assumption of risk or contributory negligence may only be entered in the clearest case, where a contrary hypothesis is not fairly admissible. Battaglia v. Norton , 16 N.J. 171 (1954).
It is not sufficient, as defendant argues, merely to establish that the conditions present on the steps were observed by Mrs. Benton. The test is whether the jury would believe that a reasonably prudent person would have used the steps at all under the circumstances and, further, that in using the steps plaintiff exercised that degree of care which a reasonably prudent person would have used for her own safety in the attendant circumstances. Pona v.
Plaintiff's conduct did not, of itself, preclude submission to the jury of the issue of either assumption of risk or contributory negligence. The trial court therefore committed error in granting defendant's motion of dismissal, there being sufficient evidence upon which reasonable persons could conclude that plaintiff was not contributorily negligent and did not assume the risk, and that she exercised due care in the circumstances. Pona v. Boulevard Arena and Doherty v. Trenton Trust Co. , above; Shipp v. Thirty-Second Street Corp. , 130 N.J.L. 518 (E. & A. 1943).
This brings us directly to the second ground for the dismissal of the action -- defendant's immunity from tort liability as a charitable institution. The trial court's determination that Mrs. Benton was a beneficiary of defendant's charitable purpose and not a stranger to it is not challenged on this appeal. Rather, plaintiffs make a frontal and ...