Goldmann, Conford and Freund. The opinion of the court was delivered by Conford, J.A.D.
Plaintiff was a sheet metal worker whose employer had contracted with defendant to install heating systems in homes being constructed by the defendant as a developer. Plaintiff's work required his entry and egress from buildings in course of construction before front entrance steps were erected. While leaving one of these buildings in the course of his work he twisted his ankle, and he brings this action on the theory that defendant breached its duty to provide him with a safe place to work. At the conclusion of plaintiff's case the trial judge in the Law Division dismissed the action solely on the ground of assumption of risk. Defendant's brief seeks to justify the action of the trial court on that ground and does not argue that there was no jury question insofar as the duty of the defendant to the plaintiff is concerned.
The structure which plaintiff was leaving when injured could not be feasibly entered in any other manner than through the opening for the front door. The doorsill was about four feet from ground level and the terrain was uneven, Plaintiff had been in and out of the building several times on November 30, 1955, the day of the accident, without
incident. He had also worked at 15 or 20 other houses in the development having no front steps "by climbing in and letting myself out." He testified:
"Q. When you came to the project and saw this situation, did you do anything about it? A. There wasn't much we could. We don't build stairs. We just install the heating. If we are told to go in the house we go in the house.
Q. Did you speak to anyone about it? A. Well, it was mentioned around that it was a rough way to get in and out of the house, but what can we do? I have to work."
He also testified on cross-examination that he had no step-ladder at the time although some of the other crews which did this kind of work had been supplied with ladders that morning. The employer did not have sufficient ladders "to go around."
Plaintiff's testimony as to how he left the building when he was injured is unclear as to the precise physical course he pursued. On direct examination he testified:
"Q. Tell us exactly what happened on this day when you were going out of the house, November 30. A. I was going out of the house and I came to the door and sat myself down on the door sill so that my feet would almost touch the ground. It was about two feet away from them to the ground. I hung on to the door jamb and let myself go, and my ankle twisted. I did not stand up and jump. I didn't get back and run and jump. I just sat down on the door sill and pushed myself so I got free of the door and down to the ground. And my ankle twisted."
On cross-examination plaintiff was confronted with testimony he gave on depositions before trial to the effect that "I had to jump down the four feet." The excerpts from the depositions read at the trial indicate that while he then testified that he sat or crouched down and put his foot out before jumping, he also said that he did not sit down "on [his] buttocks" and ease himself out although he could have. He explained at the trial:
"* * * A. I didn't sit all the way down on my buttocks. There was nails sticking up. There was rough wood. I didn't sit flat down but I crouched ...