Price, Schettino and Gaulkin. The opinion of the court was delivered by Price, S.j.a.d.
Plaintiffs in a negligence action seek to reverse a Superior Court, Law Division, judgment of no cause for action entered on a jury verdict and to reverse the denial of a motion for a new trial. Plaintiffs contend that the trial court committed prejudicial error in permitting the filing of a third-party complaint and erred also in portions of its charge to the jury and in its refusal to charge as requested by plaintiffs.
Plaintiffs, who are husband and wife, were tenants of a third-floor apartment in a four-story apartment building in Jersey City owned by defendant H. & C. Realty Corporation. Plaintiff Mary Schult sought damages for personal injuries allegedly sustained as the result of a fall on a common stairway in defendant's building. The complaint alleged that she fell as the result of slipping on "some foreign substance or food stuffs which were lying on the floor of the landing between the third and second floors." She testified that she stepped into something which "felt very slimy," her "feet slipped" and she "fell down a whole flight of steps." Plaintiffs alleged that the landlord was negligent in failing "to keep the stairway in said building in a reasonably safe condition"; that the landlord had constructive notice of the dangerous condition caused by the presence of the foreign substance on the stairway and neglected to remedy it. The existence of a nuisance was alleged also. Plaintiff John Schult sued per quod.
Defendant over the objection of plaintiffs obtained leave of court to file a third-party complaint against one Betty Sanberg, another third-floor tenant of said building. The order permitting the filing of such third-party complaint
recited that said Betty Sanberg "is or may be liable to Defendant for all or part of Plaintiff's claims against this Defendant."
The third-party complaint varied substantially from the usual form of a complaint of this nature. It alleged that on June 10, 1956 Mrs. Sanberg "negligently spilled some baby food, or other liquid matter" on the steps or landing; that Mrs. Schult was allegedly injured as the result of a fall caused by the presence of such substance; that her fall was due to the failure of Mrs. Sanberg to "clean up said baby food or other liquid matter"; that Mrs. Sanberg failed to notify the third-party plaintiff of the presence of the foreign matter on the stairway. Said third-party complaint concluded with the following further statements:
"This defendant and third party plaintiff feels that unless the said Betty Sanberg is also made a party to the action, of plaintiffs, it may be held liable to plaintiff for all or part of their said claim.
WHEREFORE this defendant and third party plaintiff prays that the said Betty Sanberg be joined in this action to answer in damages to said plaintiffs for all or a part of their said claim and relieve this defendant from same."
The third-party complaint sought no direct relief in favor of H. & C. Realty Corporation against Betty Sanberg either by way of contribution, indemnity or otherwise. It was not in conformity with the third-party procedure contemplated by the applicable rules.
The pretrial order in which all counsel participated set forth the contentions of plaintiffs in substantial conformity with the complaint. Defendant contended that it was not negligent or guilty of maintaining a nuisance. It alleged contributory negligence and assumption of risk and asserted that such injuries as plaintiff Mary Schult may have suffered were due to the negligence of the third-party defendant Betty Sanberg. The latter denied any negligence and denied that she owed any duty to plaintiffs. The pretrial order contained no statement with reference to contribution to the landlord or his indemnification by the third-party defendant. It was never amended. It controlled the trial's course. Lertch v. McLean , 18 N.J. 68, 73 (1955).
At the trial the proofs disclosed that during the afternoon of Sunday June 10, 1956 Mrs. Sanberg was carrying her 13-month-old child down the stairway from her apartment. While so engaged she dropped a glass jar containing baby food on the landing between the second and third floors. The jar broke and its contents spilled. She pushed the mixture of food and broken glass aside with her foot and continued down the stairs where she related the occurrence to her husband, who had preceded her. He returned immediately to the scene and partially removed the substance with a rag. Such glass as he collected he deposited in a garbage can.
Plaintiff Mrs. Schult testified that as she was descending the stairway between 9 and 9:15 the next morning and had reached the landing between the second and third floors she stepped on something which felt very slippery. As a result she fell and sustained the injuries for which she sought compensation.
The record before us further reveals that on June 10 plaintiff had descended the same stairway at 3:30 P.M. and ascended it at 8 P.M.; that at the latter hour she observed a broken jar of baby food which had been pushed on the landing toward the corner. She made no further use of the stairs until the happening of the accident on Monday morning.
The superintendent of the apartment house testified that the halls and single common stairway were usually cleaned every other day; that one of the regular cleaning days was Saturday; that the stairway had been cleaned on Saturday, June 9, 1956; that no cleaning was done on Sundays except in the event of an emergency; and that ...