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Scheri v. Depaolo

Decided: June 30, 1961.

JOHN SCHERI, INDIVIDUALLY AND AS THE PARENT AND NATURAL GUARDIAN OF HIS INFANT DAUGHTER, MARIE T. SCHERI, PLAINTIFF-RESPONDENT,
v.
JOSEPH AND JUSTINE DEPAOLO, DEFENDANTS-APPELLANTS



Conford, Freund and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d.

Conford

Defendants appeal from a judgment for plaintiff entered on a jury verdict. The theory of the action was negligence of the defendant landowners in failing to warn the minor plaintiff, a social guest (who has since attained majority and now appears in these proceedings in propria persona), of a dangerous condition on their property, resulting in her injury when she came upon the premises unforewarned thereof.

Plaintiff's proofs as to liability, adduced solely through her own testimony and that of her mother, would have permitted the jury to find the following facts. Plaintiff drove to the home of defendants in East Orange, her mother a passenger in the car, on December 24, 1958, arriving there about 8:00 P.M. The prearranged purpose of the trip was

to pick up the young son of defendants, a soldier on furlough, who was then "going with" plaintiff's sister, and to drive him to plaintiff's home in Oceanport to stay over Christmas. Plaintiff parked the car across the street from the DePaolo home, "just a ways up from the house," about "two feet, three feet." The front of defendants' home was dark, being only dimly lighted by street lights. A stone path two to three feet wide ran from a sidewalk in front of the house a distance of about 55 feet to the front entrance of the dwelling. There were grass lawns on both sides of the center path. Plaintiff testified that there was a thin wire strung along the borders of the sidewalk and the path, hanging about two feet above the ground. The wire was "right on the pathway," "it met with the sidewalk." On redirect examination, she said the wire ran "two inches" from the pathway. There was testimony by both defendants that there was no wire at all along the path, but only bordering the sidewalk on both sides of the path, strung about a foot or a foot and a half from the sidewalk, and fastened to iron posts placed in the lawn about a foot from the center pathway on either side. They had put this wire up some years before to keep young bicyclists off the lawn.

Plaintiff and her mother testified, in substance, that plaintiff sounded her horn on arrival; that Mrs. DePaolo came out to the porch and called to them to come into the house, but they said they would wait in the car as they were in a hurry. After a few minutes Mr. DePaolo came out and also invited them in, explaining that the son was getting dressed. They responded they would wait in the car a bit longer. Thereafter, as plaintiff testified:

"A. Well I got out of the car and I walked across the street on to the sidewalk, and as I walked up to the pathway that met with the sidewalk, my right leg came in contact with the wire that met on the sidewalk, the pathway, and I just toppled over."

On cross-examination plaintiff testified:

"Q. Then you went across the street? A. Yes.

Q. And you were a little to the right of the path as you went to cross the street? A. Yes.

Q. And you went across the street and were going to take a shortcut across the ...


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