Goldmann, Freund and Foley. The opinion of the court was delivered by Freund, J.A.D.
[75 NJSuper Page 58] Defendants John Kolibas and Susie, his wife, owners and proprietors of a tavern and a rooming
house at 41-43 Pershing Avenue, Carteret, N.J., appeal from a final judgment of $5,000 entered in the Middlesex County Court on a jury verdict in favor of plaintiff Edgar W. Johnson, one of their former roomers. Defendants also appeal from the denial of their motion for a new trial and arrest of judgment. The judgment received by Johnson was for personal injuries he sustained on December 11, 1957, while escaping from the rooming house during a fire.
The tavern is located on the first floor and is operated by John Kolibas. He and his wife maintained their living quarters in an apartment on the second floor. There were also located on the second floor six separate bedrooms, which were rented to roomers on the date of the fire, and a common bathroom located off the hall.
Frank Derczo rented a room next to Johnson's. He awoke in the early morning hours of the day in question, lit a cigarette, then left his room, closing the door behind him, to go to the common bathroom. He returned approximately ten minutes later, opened the door, and saw that his room was filled with smoke and flames. He testified that "I just stood there for a second and I saw Mr. and Mrs. Kolibas in the hall. They asked me what was going on and I didn't know myself." Realizing that there was a fire Derczo began to make a "noise" and "banged on some of the doors" of other roomers. He did not testify that he had "banged" on Johnson's door. When the hall began to fill with smoke, he broke through a locked door at the end of the hall and went down a stairway that led to the street. Derczo stated that the hall was well lighted. He was asked if there was any obstruction between the door of Johnson's room and defendants' when he first saw them standing in the hall at their apartment door. His reply was, "Not that I know of."
Jacque Pinto lived in a corner room adjoining Derczo's room. He stated that he was awakened by the smoke and then heard Mrs. Kolibas shout, "Pete, fire." He was frightened by the fire when he opened the door to his room. He
then heard Mrs. Kolibas call out, "Pinto." He remained by the window of his room until two firemen with a ladder assisted him out of the building through the window.
Johnson, a bartender, had returned to his room about 10:30 P.M. the evening preceding the fire. He went to bed and put out his light shortly thereafter. His room was located between Derczo's and the Kolibas' apartment. Plaintiff was aroused from his sleep, wondering why he was "sweating, kind of hot." He then got out of bed to go to the bathroom. Johnson opened the door leading to the hall and immediately closed it as "the flame and smoke shot in and chased me back again." He opened it again, but the flames and smoke were "getting worse." He inhaled "a stomach full [of smoke] and nearly passed out from it." Johnson ran across his room, opened the window, and saw flames and smoke coming "from Derczo's window around to mine." He explained that:
"I put my head out the window for a while and I figured somebody would come to get me out of there. But it got so hot in there that I couldn't stand it, so I put my leg out on the little roof over the door and I tried to get on there but I couldn't. The flames and heat got so bad there that I couldn't hold on no longer. I hung on the ledge and I dropped on the sidewalk there."
Plaintiff dropped from his hanging position on the ledge, fell backwards and sustained personal injuries to his head, back and legs. He was later treated for smoke poisoning and burns at a hospital where he remained for about two weeks.
On the question of whether he received any warning as to the fire, Johnson testified on direct examination as follows:
"Q. From the time you opened your door until the time you went to the window and yelled for help before you jumped, did you see anyone?
Q. Did you in fact talk to anyone?
A. I didn't talk to anybody.
Q. Did anyone knock on ...