For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Haneman. For reversal -- None. The opinion of the court was delivered by Proctor, J.
The plaintiff, Harry Handleman, brought this action to recover for personal injuries which he sustained on June 6, 1958, as the result of a fall down a cellar stairway on the premises of the defendants, Frank Cox and Jack Tillotsen, t/a J. & J. White Diamond Co. At the end of the plaintiff's case, the trial court granted the defendants' motion for a judgment of dismissal, and denied the plaintiff's motion to reopen his case and submit additional evidence. On the plaintiff's appeal, the Appellate Division reversed and remanded for a new trial on the sole ground that the trial court erred in denying the plaintiff the right to reopen his case. 74 N.J. Super. 316 (App. Div. 1962). One judge dissented, and the defendants have appealed to this court as of right. R.R. 1:2-1(b). Because we have concluded that the plaintiff made out a prima facie case without the additional evidence proffered by him, it is unnecessary for us to consider the propriety of the trial court's denial of his motion to reopen.
Since we are reviewing the correctness of the dismissal at the end of the plaintiff's case, we must accept as true all of the evidence and the reasonable inferences arising therefrom which are favorable to the plaintiff. With this in mind, we believe a jury could properly find the following: The plaintiff was employed by the Senak Corporation as a salesman and bill collector. Senak is a retail distributor of household goods, such as silverware, dishes, electrical appliances, watches, blankets, sheets, pillow cases, and lamps. Its representatives, including the plaintiff, solicit sales from members
of the public and collect weekly installment payments from the buyers.
The defendants own and operate the J. & J. White Diamond Diner in Westfield, which is a one-story building comprising a dining area with a counter, a kitchen, and a basement. The public entrance to the dining area and counter is in the front, facing the street, and a parking area surrounds the rest of the building. The kitchen is in the rear part of the building behind the dining area and may be reached either through an inside door from that area, or through the rear service entrance from the parking lot. All food supply and merchandise deliveries are made through the service entrance, and at the time of the accident there was no sign at the rear door prohibiting admittance by anyone.
Approximately two months before the accident, Bateman, an employee at the diner, purchased some merchandise from a Senak salesman. This sale took place at the counter in the public dining area, as did the collections of Bateman's installment payments of one dollar each week. About a month before the accident the defendant Cox's nephew, also an employee at the diner, purchased a set of silverware from a Senak salesman. He, too, made the purchase and his subsequent weekly payments at the counter. Prior to the accident, the defendant Cox knew that Senak salesmen visited the diner and that his employees made purchases from them. Indeed, Cox himself bought items for his personal use from Senak salesmen at the diner. Although the defendant Tillotsen never made any purchases from Senak salesmen himself, he allowed his employees to meet their weekly installment payments by taking money from the cash register and leaving a "takeout slip."
The plaintiff had never been in the defendants' diner before the day of the accident, but three account cards, representing previous sales at the diner by other Senak salesmen, had been given to him by Senak because the diner was within his sales territory. At about 11:30 A.M. on June 6, 1958, the plaintiff went to the diner to make a collection on one of
these accounts. He entered the diner through the front door and saw two of the employees, Lawson and Savage, behind the counter. The diner "was full * * * all the stools were taken." After the plaintiff introduced himself, Bateman, who was also present,*fn1 made a payment on account for merchandise which he had previously purchased. Lawson then asked the plaintiff if he had any silverware sets for sale, and upon learning he had, Lawson told him to bring the sets around to the rear entrance into the kitchen. The plaintiff left the front of the diner and went to his car to get two boxes of silverware, each approximately 18 inches long, 12 inches wide, and 5 inches deep. He carried these boxes in front of him as he walked toward the open rear door, approaching it from the side.
The rear doorway is in the center of the building, on the same level as the parking lot. Immediately inside is a raised platform measuring 38 inches in width and 29 1/2 inches in depth. On the left of this platform is a wall and on the right another step up to the floor level of the kitchen. Directly ahead of the rear doorway is the stairway leading to the defendants' cellar. Although a railing guards the stairwell on two sides where it cuts through the kitchen floor, and the wall is on the third side, there is no gate or other device across the top of the stairs adjacent to the platform.
As the plaintiff approached the doorway, he saw a coffee carton, about 2 feet high and 2 feet wide, which had been placed on the platform "right in front of the stairs." As a consequence, the carton blocked his view and he did not realize the existence of the stairway. This carton was known by the defendants' employee, Savage, to have been placed there by a supplyman about 15 minutes before the plaintiff entered the doorway. Lawson met the plaintiff in the kitchen by the platform and directed him to place the silverware boxes on the railing, which had a flat top on it similar to a narrow counter. As the plaintiff placed the boxes down, he "just made one move" and fell down the stairs. After resting a few minutes, he came back upstairs where he completed sales of the silverware sets to Lawson and Savage by having each sign a receipt for his purchase. The plaintiff then left the diner and went home.
Because the depth of the platform between the doorway and the top of the stairs was only 29 1/2 inches, it was 8 1/2 inches short of the requirements of the local building ordinance and the National Building Code. According to evidence in the case, the requirement of a minimum depth of such a platform is intended, among other things, to warn people of the presence of a stairway.
At the conclusion of the plaintiff's case, the defendants moved for a judgment of dismissal. In granting the motion, the trial court held that although the plaintiff's presence in the front of the diner was probably under an implied invitation by the defendants, he was a trespasser when he entered the rear of the premises. The trial court further held that under the circumstances the defendants breached no duty owed to the plaintiff as a trespasser. Parenthetically we note that in the pretrial order, the defendants asserted that plaintiff's status "at the time of the accident was that of a mere licensee."
Immediately after the trial court granted the defendants' motion, the plaintiff moved to reopen his case in order to submit additional evidence which he contended would show
his status in the rear of the premises to be that of an invitee. The trial court denied this motion.
On the plaintiff's appeal to the Appellate Division, that court agreed with the trial court that when the plaintiff first entered the front of the diner, he was probably by implication an invitee, although he "did not qualify as an invitee at the moment of his fall." 74 N.J. Super., at p. 326. But, in its view, the evidence would support a finding that plaintiff's status in the rear of the diner was that of a licensee and not of a trespasser. However, it held that the defendants breached no duty owed to the plaintiff as a licensee. The court found that the location of the stairwell and the length of the platform were not the proximate cause of the accident, but that "[i]t was the carton, in part concealing the presence of the steps, which may have proximately been responsible for the accident." Id., at p. 329. The court further found that:
"Savage acknowledged knowing the carton was on the platform, thus blocking a view of the cellar stairs by anyone entering through the rear door, at the time he saw plaintiff approach that door. However, neither Cox nor Tillotsen was on the premises at the time or had knowledge of this dangerous condition. On the basis of the evidence presented, neither Savage nor Lawson was performing any service for ...