Price, Haneman and Schettino. The opinion of the court was delivered by Price, S.j.a.d.
Plaintiffs Harry Glaser and Ruth Glaser, his wife, seek reversal of a judgment based on the trial court's action in granting defendants' motion for involuntary dismissal at the end of plaintiffs' case. Plaintiff Ruth Glaser sought damages for personal injuries alleged to have flowed from a trespass. Her husband plaintiff Harry Glaser sought recovery of consequential damages.
The proofs were as follows: Plaintiffs were owners of property in New Milford, Bergen County, N.J., on March 12, 1956. On that date defendant Styles employed by defendant Hackensack Water Company as a meter reader went to plaintiffs' property to read the meter for the corporate defendant. The meter was located in the garage on the ground level of the house a few feet from the garage overhead door through which entrance was gained by defendant Styles. The garage door was unlocked. Styles opened the door, entered the garage, read the meter, closed the door and left. At the time in question Mrs. Glaser was in a bedroom on the second floor. Her 3 1/2-year-old daughter was in the living room on the lower floor. Mrs. Glaser heard the movement of the garage door. She cried out: "Who is there?" She received no answer, became panicky and, fearing for the safety of her daughter, ran rapidly down the stairs from the second floor to the first floor. The testimony indicates that, as she neared the foot of the staircase, she missed a step, jumped down the last two steps and fell. She landed on the living room floor with her full weight on her right foot, fracturing her ankle.
She testified that meter readers employed by the corporate defendant had been coming to the house for several years to check the meter. On prior occasions she had asked them to give her notice of such prospective visits and had said: "Please let me know when you are coming, don't walk in my house."
The record discloses that during the colloquy between the trial court and plaintiffs' attorney at the time of the argument of the motion for dismissal, the latter conceded
that the corporate defendant had a contractual right to have its meter read periodically by its employee. The contention of plaintiffs' attorney was that a trespass had been committed because defendant Styles on the occasion in question entered the premises without permission and failed to make his presence known. Defendants denied that any trespass occurred. They contended that Styles' entry into the garage was lawful. The trial court based its dismissal of the case on the following grounds: (a) that a contractual right to read the meter existed and that the unannounced entry by Styles did not constitute a trespass; (b) that assuming the unannounced entry constituted a trespass Mrs. Glaser's injuries were not proximately caused by it; and (c) if the action were considered as one based on negligence of defendant Styles in entering the premises of plaintiffs without warning, the accident was not the natural and proximate result of the negligence and was the direct result of the intervening act of Mrs. Glaser in running rapidly down the stairs in the manner outlined.
We hold that the dismissal of this case was proper but that the justification for such action is found in the fact that the injuries sustained by Mrs. Glaser were not the proximate result of the acts of defendant Styles whether the suit be considered as grounded in trespass or negligence.
On this appeal plaintiffs assert that the unannounced entry by defendant Styles constituted a trespass; that the proofs establish a prima facie case; that a jury question was created as to whether the injuries sustained were the proximate result of the trespass. Plaintiffs rely on the case of Mitchell v. Friedman , 11 N.J. Super. 344 (App. Div. 1951), to sustain their contention that the trial court erred in granting defendants' motion for dismissal. In that case plaintiff, a tenant of defendants, instituted suit to recover damages for injuries sustained by her as the result of the admitted negligence of defendants in failing to repair the plumbing system which had been damaged by fire to the extent that the water pressure became insufficient to flush
automatically the toilet in plaintiff's apartment. Plaintiff was compelled to draw water in pails and carry it to the toilet in order to flush it, as the only method by which to maintain sanitary conditions in the apartment. This was still the situation 12 days after the fire, when she suffered a back injury while lifting a pail of water from the bath tub. At the conclusion of plaintiff's case defendants moved to dismiss the complaint on the ground that their alleged negligence was not the natural and proximate cause of the injury, and also on the ground of contributory negligence and assumption of risk. The court's denial of the motion was presented as the reason for reversing the judgment. In sustaining the action of the trial court this court held that a jury question was presented and the action of the trial court was proper. Reliance is placed on the fact that in the Mitchell case, supra , this court (11 N.J. Super. at page 347) stated the controlling factors to be as follows:
"Appellants argue that the answer to the question of natural and proximate cause depends upon whether or not the defendants should have foreseen that, as a result of an insufficient water pressure, the plaintiff would be injured in the manner charged. Many decisions more or less supporting this view of the law might be cited, beginning perhaps with the expression of a doubt in Greenland v. Chaplin , 5 Ex. 243; 155 Eng. Rep. 104 (1850). But there has been a strong trend through the years to discard foreseeability as a test of proximate cause and to use it instead in defining negligence. Annotation in 155 A.L.R. 157; Pease v. Sinclair Refining Co. , 2 Cir. , 104 F.2d 183, 123 A.L.R. 933 (1939). And see the dissent as well as the majority opinion on the basis of liability in Palsgraf v. Long Island R.R. Co. , 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253 (N.Y. 1928). 'If the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen, the extent of the harm or the manner in which it occurred, does not prevent him from being liable.' Restatement, Torts , § 435; see also § 901 et seq. , and especially 905. In England, the foreseeability of injury does not appear as an element in the consideration of proximate cause in negligence cases. The Argentino (1888), 13 Pro. Div. 191; affirmed (1889), 14 A.C. 519; Cobb v. Great Western Ry. ,  1 Q.B. 459; affirmed  A.C. 419.
Our New Jersey cases disclose a development similar to that observable in other states. In Crater v. Binninger , 33 N.J.L. 513 (E. & A. 1869), an action for deceit, Chief Justice Beasley,
after mentioning the difficulty of determining what results are proximate and what remote in a legal sense, said that 'those results are proximate which the wrongdoer, from his position, must have contemplated as the probable consequence of his fraud or breach of contract.' This concept, somewhat modified, was applied a few years later to a negligence case, Delaware, L. & W.R. Co. v. Salmon , 39 N.J.L. 299 (E. & A. 1877). But in Hammill v. Penn. R.R. , 56 N.J.L. 370 (Sup. Ct. 1894), where may be found one of our best discussions of proximate cause, it is said that the person guilty of negligence 'is equally liable for the consequence whether he could have foreseen them or not.' An attempt to reconcile the conflict appears in Newark & S.O.R. Co. v. McCann , 58 N.J.L. 642 (E. & A. 1896). After stating that the term 'natural' imports that the injury is such as might reasonably have been foreseen, the court continues, 'Of course, it is not necessary that the wrongdoer should be able to anticipate the very occurrences which resulted from his laches; it is enough if, after they have happened, they are seen to have followed from his misconduct in the natural course of things and within the range of reasonable probability; and it must generally be left to the jury to determine according to the circumstances whether the facts fit the standard ...