Goldmann, Freund and Haneman. The opinion of the court was delivered by Haneman, J.A.D.
Plaintiff Ralph S. Williams appeals from a judgment of the Morris County District Court granting the motion of defendant Morristown Memorial Hospital for an involuntary dismissal at the conclusion of the entire case and from the denial of his motion for a new trial.
On the evening of October 22, 1956, between 11:00 and 11:30 P.M., plaintiff drove his wife to the defendant hospital in response to a telephone call informing him that their daughter had just undergone a dangerous delivery. It was raining hard as he drove along the private approach driveway leading from the public street to the main front entrance of the hospital. He proceeded around a traffic island in said driveway and discharged his wife at the front entrance. Thereupon, he continued around the island and re-traversed a portion of the driveway initially travelled on his approach to the main entrance, in order to find a place to park. He parked his car close to the curb on his right, facing the main entrance, and to the rear of two parked cars. It is undisputed that defendant permitted such parking at this location. When plaintiff got out of his car from the driver's side on to the roadway, he discovered that the heavy rainfall had caused a flow of water, some of which ran over the top of his shoes. Although there was a metal lamp post near the point where he parked, plaintiff testified that it was dark. However, he did observe a cement walkway at his right about 6-7 feet distant, leading to the front entrance. The sidewalk was separated from the roadway at this point by an irregular strip of grass, 15 feet wide at the widest point. Plaintiff could have walked in the driveway for some feet -- either in the direction of the front entrance
or in the opposite direction -- and have gained access to the sidewalk without crossing the grass strip. He could have as well continued walking the length of the driveway to the front entrance without using the sidewalk. Any one of these three modes of approach to the hospital would have exposed him, however, to the dangers of contact with approaching vehicles. He took the most direct route to the sidewalk by walking in front of his car and crossing the grass plot. When he reached the point where the grass and sidewalk met he tripped over a low wire fence about 18 inches high and fell heavily to his knees. Plaintiff testified that he did not see the fence and that no warning of any kind had been provided by the hospital.
Defendant's maintenance supervisor testified that the fence in question had been erected in order to prevent people from crossing the grass plot. He further testified that the fencing had previously extended around the entire grass plot, but had been so frequently trampled down that the part along the curbside had been removed.
It was not disputed that plaintiff's presence on the hospital grounds generally was in the capacity of an invitee.
At the end of plaintiff's case, defendant moved for an involuntary dismissal. The court reserved decision and directed defendant to put in its case. At the end of the entire case the trial judge granted defendant's motion to dismiss on the ground that plaintiff had exceeded the scope of his invitation in crossing the grass plot and that he was, as a matter of law, a trespasser to whom defendant owed no duty except to refrain from willful injury.
Plaintiff contends that the question of whether he exceeded the scope of his invitation on defendant's premises should have been submitted to the jury and not determined by the court.
Our Supreme Court recently has reaffirmed the rule that the duty owed by an occupier of land to third persons
coming thereon is determined according to the status of such third person, i.e. , ...