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Berger v. Shapiro

Decided: June 1, 1959.

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



For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor and Schettino. For reversal -- Justice Hall. The opinion of the court was delivered by Proctor, J. Hall, J. (dissenting).

Proctor

The Appellate Division reversed a judgment dismissing plaintiff's negligence suit at the close of all the evidence. 52 N.J. Super. 94 (1958). We certified upon the defendant's application. 28 N.J. 306 (1958).

The plaintiff, Sarah Berger, an elderly woman, came from Florida to visit her daughter and son-in-law, Samuel Shapiro, the defendant, at their home in Cedar Grove, New Jersey. She had been staying there for about two or three weeks prior to the accident which occurred on September 13, 1955. The plaintiff has been suffering from glaucoma for the past 13 years and her vision is greatly impaired. She testified that while she can "see a little, * * * enough to get around when I am close," her vision is not at all clear and that "[e]verything is shadowy like." Her vision at the time of the trial was the same as when the accident occurred. She had difficulty at the trial in examining a photograph of the scene of the accident.

On the day of the accident she was alone on the front lawn of the defendant's house. Her sister, who was also a visitor, was inside and her daughter was next door with a neighbor. Mrs. Berger decided to go into the house. She

had never before used the front entrance without assistance and generally used the rear entrance where there was a banister. She testified:

"I felt I wanted something so I got up to go into the house. I very seldom go alone but my daughter wasn't home just yet. My sister was in the house. So I though 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."

She fell from the porch to the ground, a distance of about four and a half feet, breaking her heel and ankle. A rosebush situated close to the right front side of the porch was broken by her fall. On cross-examination she testified as follows:

"A. I walked up the steps all right. I walked slowly and then when I went to open the door, so I went this way to open the door, stepped back to get in and my foot went into something that was empty; I don't know what.

Q. You don't know what that was? A. No, I didn't know; at that time I didn't know."

Later when she was recalled to the stand and shown the photographs of the steps she testified:

"Q. Did you have your hand, which hand, on the door? A. This door. I had it on the door to open it. I went back to get the door because the door is on this side. So I was on this side. I opened the door. I stepped back to open the door, my foot fell into something that was like empty. I didn't know what it was and I went down.

Q. When you did step back you had your hand on the knob of the door to open it? A. Yes.

Q. Where did you fall? A. On the lawn, the front lawn. Right on the side where I fell; on the side where I fell. I fell right to the side."

And on further cross-examination she said:

"I opened the door, I stepped back, I went down this way right off the porch."

The record does not indicate whether the plaintiff, in conjunction with the above quoted testimony, is pointing to the photograph or physically ...


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