Goldmann, Foley and Lewis. The opinion of the court was delivered by Foley, J.A.D.
With our leave defendant appeals from the interlocutory order of the Monmouth County District Court granting a new trial after a jury verdict of no cause of action. See R.R. 2:2-3.
The suit was brought by Mrs. Vorhies to recover damages for personal injuries; her husband asserted a claim per quod. The action arose from an accident which occurred on June 24, 1959 at about 2:00 P.M. in the entranceway of defendant's barber shop located at 161 Main Street, Keansburg, New Jersey. The store is of conventional design. The doorway, set back a few feet from the sidewalk proper, divides two windows which front upon the public sidewalk, and glass panels, set at an angle, are on both sides of the entrance. There was a rubber mat directly in front of the door. Mrs. Vorhies, intending to have a haircut, had turned from the sidewalk into the entranceway, and was approaching the mat when she slipped, lost her balance, and fell. As she did, her head struck the window sill and her right arm went through one of the glass panels. She said she was about two feet from the mat when she fell.
On both direct and cross-examination she testified that she did not know what caused her to slip. Defendant, who did not witness the occurrence, was called from the rear of the store by an employee, Paul Toro. He noticed that Mrs. Vorhies' hand and arm were bleeding profusely and took her to the office of a doctor nearby, where her wounds were treated and bandaged.
Upon their return to the shop they had a conversation in the course of which, according to Mrs. Vorhies, defendant
pointed to some small rubber nodules which had been worn loose from the mat and were lying on the walk, and ventured the opinion that these were the cause of her fall. Defendant conceded the conversation, but denied that he had attributed the accident to the nodules.
Either later that day or on the following morning, LeRoy Vorhies visited defendant at the barber shop. He testified that defendant "was very persistent that she had slipped on these little rubber things off the mat." Defendant's denial of this statement was oblique. He said that he did not intimate that he was at fault for the accident; but he conceded that the condition of the mat had been deteriorating for some time and that nodules did come loose from it. These, he said, were swept into the street by Toro, and he testified that Toro had swept the entranceway shortly before the accident occurred. This, Toro confirmed. Toro also testified that while sweeping the floor of the store he saw Mrs. Vorhies fall three feet from the mat, that she was wearing high heels and carried a pocketbook, and that after his employer and plaintiff left for the doctor's office, he picked up a bottle of pills which plaintiff "had in her hand."
Defendant testified that the concrete of which the sidewalk and entranceway were made contained blue stone, rather than gravel, and a photograph in evidence indicates that the sidewalk has the mottled and uneven surface which is characteristic of this type of construction.
The issues of negligence and proximate cause were properly submitted to the jury. Advisedly, in light of the evidence adduced, the trial judge instructed the jury on the effect of circumstantial evidence. In that connection he charged:
"In the absence of direct evidence, it is incumbent upon the plaintiff to prove not only the existence of such possible responsibility, but the existence of such circumstances as would justify the inference that the injury was caused by the wrongful act of the defendant and would exclude the idea that it was due to a cause with which the defendant was unconnected.
While proof of certainty is not required, the evidence must be such as to justify an inference of probability as distinguished from mere possibility of the negligence on the part of a defendant."
In setting aside the jury verdict the court said:
"The Court inclines to the view that a verdict cannot be sustained upon a theory contrary to the one on which it was tried. Such a verdict would of necessity be against the weight of the evidence, as it would go beyond and ...