Goldmann, Freund and Haneman. The opinion of the court was delivered by Freund, J.A.D.
The plaintiff, Martin Snyder, instituted this action in March 1954 to recover for personal injuries sustained as the result of the defendants' negligence. The accident occurred on the night of April 6, 1953 at the defendants' factory building in Newark. Principally because of improper lighting in a passageway leading to a loading platform, plaintiff stepped off the walking area into an unguarded "trench" or opening, over three feet deep, thereby sustaining the injuries for which recovery is sought. This is an appeal from the entry of a dismissal by the trial judge of the Law Division at the end of the entire case.
The defendant I. Jay Realty Company is the owner and landlord of the premises at 39 Fourth Street, Newark. The defendants Arnold Sachs, Isidore Sachs, and J. Milton Sachs are partners trading as the New Jersey Knitwear Company, which occupies only the third floor of the building as a tenant. The New Jersey Knit Wear Company, a corporation of New Jersey (an entity apart from the Knitwear Company partnership), was also named as a party defendant.
On April 6, 1953, sometime between 7:00 and 8:30 P.M., plaintiff met one Frank Sellick, a truckdriver employed by the Knitwear Company, in New York. Sellick had then been employed by the tenant-defendant for about eight or nine months. The employee invited plaintiff to his employer's place of business on a purely social visit. Snyder accompanied him to the Newark building, intending to go with Sellick on a personal errand thereafter. Upon arrival at the premises, Sellick parked his truck at the loading platform at the rear of the building, and the two men then walked to the front and ascended the steps to the third floor.
Plaintiff browsed around, had a "coke," and watched the other employees of Knitwear who were working that night. In the meantime, Sellick and Morgan Batten, the acting night foreman, proceeded to load some cartons of sweaters onto a freight elevator in the rear of the building. After about 20 minutes on the third floor, during which time plaintiff had been introduced to several of the employees, Sellick advised him "we are ready to leave." The three men -- foreman Batten, Sellick, and Snyder -- thereupon entered the freight elevator and descended to the ground floor. Batten then picked up a carton and carried it from the elevator. Sellick did likewise, as did plaintiff, who followed the first two as they walked toward a loading platform outside the building where the truck had been parked.
It was now dark outside, and the dim light from the elevator illuminated only the immediate area. After a 5 to 12 foot walk from the elevator, the passageway and loading platform were "pitch black." The passageway then made a turn; at that point plaintiff could see only the back of the person he was following. Guided only by the moving form ahead of him, plaintiff suddenly fell from the passageway into the unguarded trench. Sellick testified that when he returned to find his friend, Snyder was "in terrible pain and delirious."
The elevator, passageway, and loading platform were for the use of all the tenants and were under the control of the landlord. Although there was another "light socket" on the wall adjacent to the platform, it had not been functioning during Sellick's entire employment. On a previous occasion Sellick himself had fallen into the trench and had requested one of his employers, Arnold Sachs, to have the light repaired. He testified that two months before Snyder's fall Sachs had, in his presence, called the landlord and complained about the absence of a light.
Milton Sachs, manager of the knitting mill, was the only one of the three partners of the Knitwear Company to testify. He said that he had never authorized his employees to bring guests onto the premises, never knew of his employees
doing so, and did not know that plaintiff was in the building on the night of the mishap. He was not asked whether the employees had been forbidden to bring their social guests on the premises. Sachs further testified that he did not know precisely which of his employees would use the elevator and passageway or that the area was dark or that the light did not function.
When the case was first tried the trial judge granted an involuntary dismissal on plaintiff's opening statement. The Appellate Division reversed and ordered a new trial, 46 N.J. Super. 323 (1957). The Supreme Court denied certification, 25 N.J. 316 (1957). The case was tried again before the Superior Court, Law Division.
At the conclusion of the plaintiff's case defendants moved to dismiss for the plaintiff's failure to prove a prima facie case. The trial judge ruled:
"From a reading of the opinion of the Appellate Division upon the appeal already had in this case, it appears that there is enough in that opinion to prevent this Court from dismissing, as a matter of ...