Price, Schettino and Gaulkin. The opinion of the court was delivered by Schettino, J.A.D.
Appeal is from a judgment entered in favor of defendant on a jury's verdict of no cause of action.
Plaintiff, a 74-year-old woman, brought suit for personal injuries sustained while entering defendant's store to make a purchase, charging negligent maintenance and construction of certain swinging doors. She testified that on March 25, 1957 she entered the store by pushing inward the right-hand door of a set of two heavy double action 180 degrees swinging doors, and that after she entered, she was
struck in the back and thrown to the floor by the left-hand door, which had been pushed inward by someone. The doors were installed in 1943 without stops or checks.
Plaintiff's expert testified that the doors were substandard construction, and dangerous, in 1943 as well as at the time of the accident, due to defendant's failure to equip them with checks or stops. Defendant's only witness was an expert who testified that the doors conformed to standards of construction in 1943, but he admitted that during the last five to seven years, door checks had become standard.
In its charge the trial court, in effect, instructed the jury that if the jury found the doors had been installed in 1943 in accordance with construction standards then existing, there was no duty on the part of defendant to do anything further at that time or in the intervening years, and that negligence in this case could only be based on a deviation from 1943 construction standards. Objection was made by plaintiff on the ground that, even if the doors met 1943 standards, if they were dangerous it was defendant's obligation to alter them, even if that meant complying with later standards, and if stops or checks should have been installed after 1943, it was defendant's obligation to do so. For the reasons hereafter discussed, we hold that the objection was proper and the trial court committed reversible error in its charge.
The rule applicable to such visitors as plaintiff is that one who invites persons to come upon his premises to purchase goods is under a duty to exercise ordinary care to render the premises reasonably safe for such a purpose. The proprietor of a store is not an insurer but he is liable for defects of which he knows or defects which have existed for so long a time that, by the exercise of reasonable care, he had both an opportunity to discover and to remedy. Nelson v. Great Atlantic & Pacific Tea Co. , 48 N.J. Super. 300, 305 (App. Div. 1958); Restatement, Torts, N.J. Annotation , § 343 (1940).
Conformance with standards of construction or custom of itself is never conclusive as to the absence of negligence;
it is, at most, merely evidential. The overwhelming weight of authority has adopted the compelling logic of Justice Holmes' statement in Texas & P.R. Co. v. Behymer , 189 U.S. 468, 23 S. Ct. 622, 47 L. Ed. 905, 906 (1903) that "What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not." The same reasoning is very aptly stated by Judge Learned Hand in The T. J. Hooper , 60 F.2d 737, 740 (2 nd Cir. 1932):
"* * * Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions ...