Conford, Foley and Schalick. The opinion of the court was delivered by Foley, J.A.D.
This is an appeal from a judgment entered in the Law Division on a jury verdict in favor of plaintiffs, and from a denial of a motion subsequently made for judgment notwithstanding the verdicts. R.R. 4:51-2. The determinative question is whether or not the trial court erred in denying the motions for involuntary judgment of dismissal which were made at the end of the plaintiffs' case and at the close of the entire case.
The individual defendants were the owners of land on which Elliot Merriman was constructing a residence in behalf of Merri Homes, Inc. on Jones Road, Englewood, New Jersey, an exclusively residential section. Construction had commenced in the early part of August 1956 and by October 6, 1956, the accident date, it had progressed to a stage where the building was completely framed and the rough
heating, rough plumbing, and rough wiring were being installed. Doors had not been hung on either of the two entrance ways to the dwelling. On the afternoon of October 6th the infant plaintiff, then eight years of age, was walking along Jones Road accompanied by a playmate. Each of the children carried two kittens. At a point across the way from defendants' property they paused to play with their pets. While doing so, two of the kittens ran across the street toward the partially constructed building; the children followed in an effort to retrieve them. What happened next is not entirely clear. However, the composite of the child's testimony leads us to conclude that she entered the building through an open doorway while still in pursuit of her errant kitten. The interior was divided into two sections. She walked through both and was leaving, kitten in arms, when she stepped on one end of a piece of curled metal scrap causing the other end to spring upward and lacerate her knee. Although there was testimony that approximately 50 children resided in the neighborhood there was no evidence that they had been seen to trespass on or about defendants' property at any time prior to the date of the accident, nor was there evidence that children were accustomed to play on Jones Road in the vicinity of the structure.
The case was presented on the theory that in the circumstances outlined a jury question arose under the doctrine laid down in Restatement, Torts , § 339, commonly referred to as the "infant trespasser rule." The section provides:
"Artificial Conditions Highly Dangerous to Trespassing Children.
A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if
(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and
(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition
or realize the risk involved in intermeddling in it or in coming within the area ...