On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Weintraub, and Justices Wachenfeld, Burling, Jacobs, Francis and Proctor. For reversal -- Justice Heher. The opinion of the court was delivered by Wachenfeld, J.
The plaintiff brought an action to recover damages for personal injuries sustained as the result of a fall on the defendants' property. The jury returned a verdict of no cause for action, but the Appellate Division reversed the judgment and remanded for a new trial. Skupienski v. Maly, 47 N.J. Super. 409 (1957). There was a dissenting opinion, and both parties appeal as of right.
The questions raised relate almost entirely to the propriety of the trial court's charge to the jury, the defendants arguing that the part of the charge which the Appellate Division deemed to be reversible error was, as a matter of fact, perfectly proper, and the plaintiff, on her cross-appeal, contending that the portions upheld by the Appellate Division actually constituted prejudicial error.
The plaintiff, a tenant of the defendants, slipped and fell on a patch of ice which had formed on a cement sidewalk located on the property. The premises consisted of a duplex dwelling house in Wayne Township. The building was divided into two one-family apartments, the defendants occupying one and the plaintiff the other.
The doors to both apartments were at the rear of the house and comprised the only means of entrance and egress. The concrete walk ran the entire length of the building, past and adjacent to the entrances to the two apartments. It intersected another sidewalk which led to a shed, where stood a garbage receptacle supplied by the defendants for the use of both parties. The walk was not intended for public use.
Above the entrance to defendants' apartment was a small roof-type canopy, extending outward from the house to a
distance of about four feet and sloping downward toward the ground at an angle of approximately 70 degrees. It was around five feet in width and partially overhung the portion of the cement walk which was immediately adjacent to the porch steps leading to the entrance door of the defendants' apartment. There was no gutter attached to the lower edge of this overhang.
The accident occurred on December 24, 1955. Two days prior there had been a snowfall and the defendants had cleared the cement walk. During the day in question, the snow remaining on the small canopy had been melting and dripping onto the cleared sidewalk. There had been a slight drizzle during the morning and afternoon, and the testimony indicates that the water on the sidewalk began to freeze at approximately 6 or 6:30 P.M. The defendants testified they had not gone outside except during the afternoon and that they had no knowledge of the presence of ice on the sidewalk.
The plaintiff stated she had used the walk without mishap in the afternoon and had noticed then that water was dripping from the defendants' canopy onto the portion outside their door. At around 9:30 P.M., she left her apartment to empty some garbage into the receptacle located next to the shed, and as she walked past the defendants' entrance she "slipped and fell down on my back and my head." She was rendered unconscious and when she recovered she "crept" to the defendants' door and rang their bell. Defendants gave her aid, and Mr. Maly turned on his porch lights and peered out, noting a small patch of ice on the sidewalk near his steps.
In their opening statements at the trial, counsel for both sides addressed themselves to a question of improper construction relating to the lack of a gutter and leader to carry off water from the protective roof overhanging defendants' entrance. The trial judge manifested some doubt as to whether the pleadings and pretrial order properly presented this issue but, upon the representation of defendants' counsel that he was not surprised by its insertion into the case, permitted an amendment of the pretrial order to read "improper construction that there was no gutter across the
roof." During the course of the trial, plaintiff called a building contractor who testified as to the standards in the trade regarding the ...