For reversal -- Justices Burling, Francis, Proctor, Hall and Schettino. For affirmance -- Chief Justice Weintraub, and Justice Jacobs. The opinion of the Court was delivered by Francis, J.
[31 NJ Page 93] The only issue presented for determination in this case is the plaintiff's contributory negligence. Defendant claims that recovery is barred on that ground as a matter of law. Plaintiff argues that a factual issue is presented by the evidence. The trial court held that the matter was for resolution by the jury. A verdict for the plaintiff was returned and the Appellate Division sustained
The plaintiffs, Jean Ferrie, aged 69 years, and her husband, Robert B. Ferrie, had lived in a one-family house on Brighton Avenue, Kearny, New Jersey, for about 11 years. Ownership was in the husband. A frame stoop was attached to the rear of the house at the kitchen exit. It consisted of a small platform, about 38 inches above ground level, connected with five steps leading to the back lawn. A wooden rail ran along its side about 30 inches above the platform. The stoop was in poor condition and on April 14, 1956 plaintiffs engaged defendant, a carpenter builder, to demolish it and construct a new one. The work called for steps, platform and railings of the same size and type as the old ones.
A few days later, on April 17, defendant's workmen removed the structure and by the end of the first day had almost completed rebuilding the new porch. Steps and platform had been constructed; the side railings remained to be installed. During the progress of the work a barrier was nailed over the kitchen door so that it could not be used as a means of exit. Before the carpenters left, the barrier was removed. Defendant asserted this was done at the request of Mrs. Ferrie who said her husband always entered the house by the rear door in returning from his daily employment. She denied the statement but admits unqualifiedly that at the end of the day she discussed the progress of the construction with defendant, knew that the kitchen door was no longer barred, observed the state of completion of the porch, and became fully aware that the railings had not been replaced. She testified also that when her husband returned home and entered the house by means of the porch and the kitchen door, they talked over the fact that everything was complete except the railings.
The following day, April 18, 1956, defendant's men did not return. According to the testimony, they were engaged in some other work.
Plaintiffs kept a pet dog which had been in their household for eight years. It was Mrs. Ferrie's daily practice after meals to take the bones and remaining scraps of food out on the back stoop and throw them to the dog. As she threw, she would lean against the rail and bend forward.
April 18 was a clear, bright, early spring day. Just before lunch Mrs. Ferrie let the dog out into the back yard through the kitchen door. At this time she noticed again the condition of the porch and that the railing was not there. Shortly after lunch, at about 1 P.M., she took the food scraps and bones from the table and went out on the platform. The dog was about five feet from the porch. She stepped near the edge -- how close, she could not say -- leaned forward in the act of throwing the bones, and fell to the ground because "there was no rail there." The only explanation offered for the fall was that she had forgotten that the railing was not in place.
It is a commonplace of the law that she was required to exercise the degree of care and vigilance for her own safety that a reasonably prudent person possessed of the same knowledge of existing danger would exercise under the circumstances and conditions which confronted her. And, in this connection, it must be assumed that her memory was equal to that of a reasonable person, that is, one sufficiently retentive to hold that present realization of past impressions which was essential to her safety. Restatement, Torts (1934) § 289(f); 2 Harper and James, Law of Torts (1956) § 16.5.
When an injury results from forgetfulness or inattention to a known danger, the obvious contributory negligence is not excusable in the absence of some condition or circumstance which would divert the mind or attention of an ordinarily prudent man. Mere lapse of memory, or inattention or mental abstraction at the critical moment cannot be considered an adequate diversion. One who is inattentive to or forgetful of a known and obvious condition which contains a risk of injury is guilty of contributory negligence as a matter of law, unless some diversion of the
type referred to above is shown to have existed at the time. Jacobs v. Southern R. Co., 241 U.S. 229, 36 S. Ct. 588, 60 L. Ed. 970 (1916); City of Birmingham v. Edwards, 201 Ala. 251, 77 So. 841 (1918); Black v. American Mut. Liability Ins. Co., 37 So. 2 d 63 (La. Ct. App. 1948); Horvath v. Morrison, 344 Pa. 434, 25 A. 2 d 324 (Sup. Ct. 1942); Wessner v. Blue Ridge Transp. Co., 338 Pa. 161, 12 A. 2 d 559 (Sup. Ct. 1940); Mayor & Aldermen of Knoxville v. Cain, 128 ...