Goldmann, Conford and Freund. The opinion of the court was delivered by Freund, J.A.D.
Jean Ferrie, a 69-year-old woman, and her husband, Robert B. Ferrie, suing per quod , brought this negligence action against Michael D'Arc to recover for personal injuries sustained by her as a result of a fall from the platform of their small rear porch while in the act of throwing bones to her dog. At the time, the porch was in the process of reconstruction by the defendant-builder and his employees. The complaint alleged that the defendant's workmen had, on the day preceding the mishap, left the porch in an unsafe and dangerous condition by failing to erect handrails and that they had neglected to take reasonable precautions to prevent use of the platform and steps. At the close of plaintiffs' case and at the conclusion of the entire case, defendant moved to dismiss on the grounds of contributory negligence and assumption of risk. The judge of the County Court denied both motions, and the case was submitted to a jury, which returned verdicts of $4,000 for each of the plaintiffs. Defendant's motion for judgment notwithstanding the verdict was denied, R.R. 4:51-2(a), and this appeal followed.
The Ferries had lived in a one-family house at 197 Brighton Avenue, Kearny, for at least 11 years prior to the accident on April 18, 1956. For about eight of those years, they had a pet dog, "Lady." Their back porch was in a "very bad way," and on Saturday, April 14, 1956, plaintiffs engaged D'Arc to demolish the old stoop and to construct in its stead a new platform, steps, and railings, of the same size and type as the old ones, as well as a new front door and a letter box, all for the sum of $250. D'Arc said that the work would commence on the following Monday or Tuesday and that the work on the porch would be completed in one day.
Defendant's workmen began the job on that Tuesday. As the old steps and railings were demolished, the employees barricaded the back door of the house, which led from the kitchen to the porch. Except for the handrailings, the work on the rear porch was completed by 4:00 P.M., quitting
time. Before the workmen left the scene, they removed the back-door barricade. To permit the jury to appreciate the physical situation, two photographs of the porch as eventually completed were introduced into evidence. The trial judge pointed out the specific respects in which the photographs did not portray the condition of the porch as it was on the day of the accident.
The steps of the porch are in the direction of an alleyway separating plaintiffs' home from a dwelling next door. The right side of the porch, as seen from the kitchen door, faces the rear yard of plaintiffs' premises. One may enter the house from the rear by ascending the five porch steps, walking across the platform, which is approximately one square yard in area, and entering the kitchen door. This door is a combination aluminum screen and storm door. When it is closed, the handle is on the left (from the outside); it opens over the platform area and, when completely open, is flush against the rear wall and window of the home. The platform is about 38 inches from ground level.
On April 17 defendant's employees had left the steps and platform without either a horizontal railing above the platform or a diagonal railing along the steps, as there had been on the old porch. They had, however, erected two upright posts, one at the base of the steps and, as the jury could have found, one at that end of the platform nearest the house. To these posts and to one other to be erected on the top step would be nailed the wooden railings when the employees returned to complete the work. They left no "horse" or other barrier at the base of the steps. Defendant D'Arc testified that the barricades were removed at plaintiff's request so that her husband could use the rear steps when he returned from work.
The following day defendant's men "didn't show up at all." April 18 was a "wonderful," "rather balmy" day, and a friend came to have lunch with plaintiff. "Lady" had been let out the back door and was in the yard. Asked what happened after lunch, plaintiff testified:
"A. Well, just as usual, we had lunch; and after we finished, I picked up the bones, I went out the door, out the outside door, and stepped onto the porch. The door closed behind. I turned around and I faced the yard. And I leaned over, and I always throw bones out to the dog any time I had them, and I fell into the yard because there was no railing there, there was no guard rail.
Q. Was Lady in the yard at the time when you threw the bones ...