On appeal from the Superior Court, Appellate Division.
For modification -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis and Proctor. Opposed -- None. The opinion of the court was delivered by Weintraub, C.J.
[31 NJ Page 46] Plaintiff was injured by a fall while ice-skating on a rink operated by defendant. The jury found for defendant. The Appellate Division reversed, 54 N.J. Super. 25 (1959), and we granted defendant's petition for
certification. 29 N.J. 582 (1959). The facts appear in the opinion of the Appellate Division and need not be repeated in detail.
The Appellate Division found error in the charge of assumption of the risk. It also concluded there was no evidence of contributory negligence and hence that issue should not have been submitted to the jury.
Defendant urges there was no negligence and therefore the alleged errors were harmless. See Bush v. New Jersey & New York Transit Co., Inc., 30 N.J. 345, 351 (1959). We think there was sufficient proof to take the issue to the jury. There was evidence that defendant departed from the usual procedure in preparing the ice, with the result that it became too hard and hence too slippery for the patron of average ability using skates sharpened for the usual surface. From plaintiff's account of his fall, a jury could infer the stated condition of the ice was the proximate cause.
We however agree with defendant that the issue of contributory negligence was properly left to the trier of the facts. Plaintiff had noted that his skates slipped on turns. A jury could permissibly find he carelessly contributed to his injury when, with that knowledge, he remained on the ice and skated cross-hand with another.
The remaining question is whether the trial court's charge with respect to assumption of risk was erroneous. The words "the proximate cause, rule of proximate cause" appear in the charge at a point at which they are unintelligible and at which "assumption of risk" doubtless was intended. Plaintiff's counsel objected to the charge, making specific reference to the introduction of "proximate cause" in the court's treatment of assumption of risk and adding "It is confusing in my mind and I don't see how the jury can understand it." Defendant urges the stenographer erred in recording "proximate cause" when in fact the trial judge said "assumption of risk." The record, however, was not corrected, and the phrasing of plaintiff's objection to the
charge would seem to support the transcript. We cannot exclude a likelihood that the trial judge unwittingly uttered the wrong phrase, and being unaware of the slip, failed to comprehend the objection made. In these circumstances, we cannot disagree with the view of the Appellate Division.
The Appellate Division also found the trial court failed to differentiate between assumption of risk and contributory negligence. The Appellate Division added (54 N.J. Super. at page 32):
"We note that contributory negligence involves some breach of duty on the part of a plaintiff. His actions are such as to constitute a failure to use such care for his safety as the ordinarily prudent man in similar circumstances would use. On the other hand, assumption of risk may involve no fault or negligence, but rather entails the undertaking of a risk of a known danger. Hendrikson v. Koppers Co., Inc., 11 N.J. 600, 607 (1953)."
As we read the charge, the trial court expressed essentially the same thought, i.e., that assumption of risk may be found if plaintiff knew or reasonably should have known of the risk, notwithstanding that a reasonably prudent man would have continued in the face of the risk. We think an instruction to that effect is erroneous in the respect ...