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Berger v. Shapiro

Decided: September 23, 1958.

SARAH BERGER, PLAINTIFF-APPELLANT,
v.
SAMUEL SHAPIRO, DEFENDANT-RESPONDENT



Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.

Freund

This is a negligence action wherein at the conclusion of the entire case a judgment of involuntary dismissal was entered by the County Court, and the plaintiff appeals.

Sarah Berger, about 70 years of age, came from Florida to attend a family wedding in September 1955 and stayed at the home of her daughter and son-in-law in Cedar Grove, New Jersey. She had been a social guest there for two or three weeks prior to the accident on September 13, 1955.

Mrs. Berger had been suffering from glaucoma for 13 years, and her vision was so seriously impaired that at the trial she was unable to identify a photograph of the steps from which she fell. She testified to being unable to see clearly, that "everything is shadowy like." Ordinarily, some one helped her in and out of the house; indeed, plaintiff testified that she always had some one with her as she ascended the porch steps. Generally, she used the back entrance where there is a banister.

On September 13, 1955 plaintiff was sitting on the lawn in front of defendant's home. Her sister was inside the house, and defendant's wife was next door with a neighbor. Plaintiff decided she wanted something inside the house. She testified as to what followed:

"So I thought I will go myself. So I walked up slowly, up the steps, and when I opened the door, I went back so the door would open, and my foot went into something that was empty and I fell down and broke my foot."

That "empty something" into which plaintiff stepped may have been the space previously occupied by a brick, for the testimony discloses that in July 1955 defendant's wife, Mrs. Shapiro, removed two bricks, one from each end of the top step. The stated reason for that act was that they had been loose. She informed her husband shortly after their removal, but they were never replaced because the defendant had resolved to install an iron railing in their stead. However, he never did.

After the defendant concluded his case, his attorney moved for judgment on the ground that the only duty owed to a social guest is to refrain from willful or wanton negligence and that plaintiff had been guilty of contributory negligence as a matter of law. The trial judge granted the motion because of "lack of evidence" indicating that "the space caused by the removal of the brick" was the "natural and proximate cause of her fall." This appeal followed.

Initially, we direct our attention to the reason advanced by the trial judge for dismissing the complaint; viz. , did the removal of the bricks cause plaintiff's fall? We note that this is not a question of proximate cause in the usual sense; it is whether there is any causal connection at all. McCappin v. Park Capitol Corp. , 42 N.J. Super. 169 (App. Div. 1956); Genovay v. Fox , 50 N.J. Super. 538, 561, 562 (App. Div. 1958); 65 C.J.S. Negligence ยง 106. The question is whether it was open to a jury to find that the space from which one of the bricks had been removed was that into which Mrs. Berger stepped and fell.

In proceeding to that determination, we are not unmindful of a salutary body of rules, ever-ready to guide our courts in passing upon motions to dismiss. A weighing of the evidence is not permitted on a motion to dismiss. To the contrary, if on such a motion any of the evidence would cause fair-minded men to differ as to whether there was a reasonably probable relation of cause and effect between the alleged negligence and the injuries, the issue must be submitted to the jury for its determination. Vadurro v. Yellow Cab Co. of Camden , 6 N.J. 102 (1950); Stanley Co. of America v. Hercules Powder Co. , 29 N.J. Super. 545, 554 (App. Div. 1954), reversed on other grounds, 16 N.J. 295 (1954); Bergquist v. Penterman , 46 N.J. Super. 74, 89 (App. Div. 1957), certification denied 46 N.J. 55 (1957). It is also well settled that on a motion for involuntary dismissal the trial judge must accept as true all evidence supporting the position of the party against whom the motion is made, and must give him the benefit of all inferences that may logically and legitimately be drawn therefrom. O'Donnell

v. Asplundh Tree Expert Co. , 13 N.J. 319, 328 (1953); Melone v. Jersey Central Power & Light Co. ...


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