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Venuto v. Lubik Oldsmobile Inc.

Decided: October 26, 1961.


Price, Sullivan and Leonard. The opinion of the court was delivered by Price, S.j.a.d.


Plaintiff, a business invitee of defendant, sought damages for personal injuries sustained on October 24, 1958, when he walked into and shattered a large panel of clear plate glass, one quarter of an inch in thickness, which formed part of one of the "interior and exterior walls" of a showroom of defendant Lubik Oldsmobile, Inc. (Lubik), in Bordentown. Plaintiff had entered defendant's showroom to make inquiry concerning the purchase of a new car. Plaintiff contended that the transparency of the glass panel with no "railing" or "markings" thereon, created a hazardous condition, its danger heightened by the fact that the same type of artificial fluorescent lighting used in the ceiling of the showroom was installed in the ceiling of a roof which extended over an outside, adjacent "bay." Plaintiff, in the act of leaving the showroom, failed to note the existence of a glass door located in the southeast corner of the showroom (opening on the roofed "bay" and intended for entrance and exit to and from the showroom) and crashed into the adjacent glass wall, the presence of which he did not observe. The parties agree that the weather was clear on the day of the accident.

In his amended complaint in the Superior Court, Law Division, as amplified in the pretrial order, plaintiff asserted a right to recover damages against State Motors Company (Motors), owner of the land on which the building was erected, and against Lubik, the tenant which had designed and constructed the building with Motors' approval. In support of his right of recovery he asserted (a) that his injuries were caused by reason of the fact that the "showroom building and in particular the glass door and window panels" were not erected in accordance with the "accepted standard of construction" and that the resultant structure, combined with "improper lighting," constituted a "nuisance

and hazard"; and (b) that his injuries were caused by the fact that defendants "so negligently constructed" and "maintained" the building in the particulars aforesaid that "the presence of window panel was indistinguishable" and the "window" which he struck was "indistinguishable" from the door.

Plaintiff's suit resulted in a judgment in favor of both defendants entered on a jury verdict of no cause for action. No appeal is taken from the judgment in favor of Motors and plaintiff has now on appeal abandoned the count charging nuisance.

In seeking to reverse the aforesaid judgment in favor of Lubik plaintiff asserts: (1) error in the court's action in striking certain testimony given by plaintiff, quoting a statement alleged to have been made by the president of Lubik and which, plaintiff contended, constituted a relevant admission "against" defendant's "interest"; (2) error in the court's admission of an exhibit, received in evidence under the circumstances hereinafter set forth; and (3) numerous errors in the court's charge to the jury.

The record before us reveals the following. The building occupied by defendant's showroom was described by plaintiff's architectural expert as follows:

"The building consists of two principal units, the show room in the front along Route 130 and the service facilities to the rear. It consists of five bays in length, four of which are enclosed in glass on three sides, and the rear service portion is masonry. The rear portion has a flat roof on it and the showroom has a pitched roof running from high in front to meet the other roof in the rear. The fifth bay is access to the service station or service room in the rear, and that's on the south side. The showroom is all glass with a terrazzo floor, lighted with fluorescent lights in the ceiling, strips, built up roof."

Entrance and exit to and from the showroom, the architect explained, might be made through double glass doors at the front thereof on the west or highway side or by a glass door which opened on the aforesaid bay on the south side.

Continuing his description of the showroom, plaintiff's witness testified that the southeast door was "about three feet wide and seven feet high" and that the glass panel "immediately adjacent" to and west of the door (which panel plaintiff struck) "was approximately four feet wide and eight feet * * * high," that its top varied by reason of the roof's "slope" from "the low side at the service facility * * * up to a high point at the highway side." The glass panel was bordered "on the inside with the frame of the door and on the right side a standard mutton, as used in most store front construction, the bottom resting on the adjacent terrazzo floor. The top was similar standard sash construction with the metal moldings, and was parallel with and against the ceiling construction." The next westerly glass panel on the same side was approximately eight feet wide and nine to ten feet high. The witness further said the door in the southeast corner of the showroom was a "stock aluminum door full glazed in a standard store front type of frame running from the floor to the ceiling, the transom above the door." The door was "hinged on the right-hand side swinging in with a small pull on the left-hand side on the inside and a push bar on the exterior of the door." He added that a small red sign was on the inside of the door with the word "pull" on it in white letters and a comparable sign on the door's exterior marked "push." Photographs of the exterior and interior of the building showing the scene of the accident and the glass wall and door on the south side of the building were received in evidence.

Testimony by plaintiff and by Lubik's president, the only witnesses in addition to plaintiff's architect whose testimony is contained in the appendices presented on this appeal, was in substantial agreement as to the circumstances surrounding the accident. The only substantial variance in their testimony was that plaintiff testified that on entering the showroom about 1:00 P.M. on the day in question he had used the front or west doorway, while the president said plaintiff

had entered through the aforesaid southeast door. They are in accord that just before the happening of the accident plaintiff examined cars on the showroom floor and then conferred with the president as they sat on a couch a few feet from the south glass well. As the conference ended the two men stood, concluded their conversation, the president turned north toward his office, plaintiff turned south, and, according to his own testimony, "looking straight ahead," took "three or four or five steps" and "collided" with the glass panel located, as above stated, "immediately next" to the door. His only explanation was that he didn't "see the glass." He suffered a severe injury. The first person to reach him was defendant's president. The court's ruling with reference to a remark which plaintiff alleges the president then made to him forms the basis of the first ground urged as aforesaid by plaintiff for reversal of the judgment against him. We initially consider it.

On direct examination, over objection made by defendant's counsel in the presence of the jury, plaintiff testified that "less than a minute" after the accident and as soon as the president reached him, the latter said: "Don't feel badly about it, there was a woman almost busted right through this window a few days ago." Defendant's counsel rested his aforesaid objection on the ground that the alleged statement was "not part of the res gestae , and furthermore, anything that Mr. Lubik may say would not have any legal binding effect on the corporate defendant."

In overruling defendant's objection to the aforesaid testimony the trial court made the following statement:

"I am going to permit it, and if I have to strike it I want to tell the jury the practicalities of striking it. You [the jurors] see, when the court tells you to strike it, you are supposed to remove it from your minds. It's almost an impossibility because it has made some imprint.

I want to say this, if I strike it, you must rise to the occasion to literally remove it from your recollection, so to speak, even though you recall it; it shall not take place, it's closed.

I am going to permit it. There is an exception on the record and I will entertain a motion to strike it if it resolves in the court's mind it's not res gestae. * * *"

Defendant's president later testified that he had no recollection of making "any such statement" as above set forth and specifically denied that there had been "any such experience" as related by plaintiff.

The record reveals that thereafter, when the testimony had been completed and both parties had rested, the jury was excused for the balance of that day and, out of the presence of the jury, defendant's counsel renewed his motion to strike the aforesaid evidence. Plaintiff's counsel, resisting the motion, asserted that the testimony had not been offered as part of the " res gestae " but as "an admission against interest," made by the defendant's president, binding on the corporation, and "showing knowledge on the part of the defendant that there was something of a danger." After argument the court granted defendant's motion, stating: "I will strike that because he was not an agent for that purpose and I find it's not res gestae."

On resumption of the trial the following day, the court made no reference whatever to the fact that the aforesaid testimony had been stricken by it in the jury's absence. Furthermore, despite the court's above quoted prior statement made to the jurors on the admission of the testimony, the court did not at any time thereafter advise the jury that the testimony had been excised from the case. As a consequence the jurors received the case for decision completely unaware of the ...

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