Gaulkin, Kilkenny and Herbert. The opinion of the court was delivered by Herbert, J.s.c. (temporarily assigned).
[76 NJSuper Page 12] During the evening of February 26, 1958, at about 10:30, the plaintiff Joan Quinlan had a fall in the driveway located on the
defendants' premises in South Amboy. Her arm was badly broken, and after several unsuccessful attempts to set the fracture and secure a union a bone grafting operation was finally performed.
Eight months after her fall Joan Quinlan brought suit, charging the defendants with responsibility for damages because of "the negligent maintenance" of their property. Her husband joined as a plaintiff to claim for the loss of his wife's services and consortium as well as for his expenses.
Joan Quinlan is the daughter-in-law of the defendants and the plaintiff Joseph Quinlan is, of course, their son.
At the close of trial in the Law Division the jury found against both defendants in favor of Joan for $12,000 and in favor of her husband for $2,745. The defendants have appealed to us from the judgment entered against them on the jury's verdict. They urge a number of reasons for reversal but we find it necessary to consider only the refusal of the trial judge to grant the motion for judgment which was made at the close of the plaintiffs' evidence. That motion was grounded upon Joan Quinlan's status as a licensee and the defendants' ignorance of the existence of a patch of solid ice in their driveway, a patch which Joan testified was the cause of her fall. The motion should have been granted.
Before the accident the plaintiffs had been to Newark to shop. They had been part of a group making the trip in a car owned and driven by Mr. Kurtz. In the group was Mrs. Bloodgood, who lived with the defendants and was the sister of one of them. Mr. Kurtz was her son-in-law. The starting point had been the defendants' home. The plaintiffs, early in the evening, had driven there and had left their car parked in the street in front of the house. They then walked along the defendants' driveway and entered the house by the side door. At that time the weather was dry and the drive was entirely clear of ice and snow. Later in the evening, as the party was driving back from Newark to South Amboy, there was a storm. Rain, sleet and hail
fell. Joan Quinlan described the storm as "a mixture of everything."
Upon getting back to the defendants' home, Mr. Kurtz ran his car into the driveway and stopped near the side door so that Mrs. Bloodgood might use that entrance. Joan Quinlan and her husband got out of the car at the same time. They had no intention of visiting the defendants and were going to walk along the driveway to the street and their own parked car. Having discharged his passengers, Mr. Kurtz backed out to the street and drove away. Joan Quinlan then walked along the driveway beside the house in the direction of the street. Her husband stayed behind momentarily to help Mrs. Bloodgood with her packages. It was at this time that Joan Quinlan fell.
Inside the house the defendant Elizabeth Quinlan had gone to bed. There is no evidence at all that she knew the weather was bad outside. The defendant Joseph Quinlan was in the kitchen having a cup of tea. Shortly before, at about 10:15, he had returned from the store which he operated. Rain and sleet were falling as he drove himself home. When his car went along his driveway to the garage he heard ice cracking beneath the wheels but there was no slipping. That the plaintiffs had been to the house earlier in the evening was unknown to him. He did not expect them to visit his property upon their return from Newark, for he knew nothing of their trip.
The plaintiffs, on this appeal and as they did at the trial, point to a leader or downspout near the front corner of the defendants' house so constructed as to carry water from the roof and discharge it in the open just above the surface of the driveway. Upon being discharged from the spout's bottom opening, water obviously would flow over the surface of the pavement with the prevailing grades. The spout or leader had existed in the described position for about 2 1/2 years before the accident. The defendant Joseph ...