Gaulkin, Foley and Collester. The opinion of the court was delivered by Foley, J.A.D.
Plaintiff appeals from a Law Division judgment of involuntary dismissal entered at the close of plaintiff's case. The matter was tried before a jury.
The proofs disclosed that on February 9, 1962, at about 6:15 P.M., plaintiff was a patron of defendant's restaurant. From the evidence and the oral argument we gather that the restaurant was laid out as follows: In the front portion there was a counter at which food was served. This extended for about half the length of the premises. Beyond the counter were booths and tables where food was also served, a telephone booth, and a pinball machine. Adjacent to this area was a kitchen. At or near the counter was a steam table and grill from which food was dispensed to the patrons.
Plaintiff upon entering the restaurant took the second or third stool from the end of the counter. During the period of 1 1/2 hours while he was there he observed nobody eating at any of the booths.
Patrons at the counter were served by a waitress. From time to time defendant's bus boy wheeled, on a "dummy," dirty dishes, food remnants and utensils, from the counter through the rear area to the kitchen where the dishes were washed. The employee also brought back clean dishes from the kitchen.
After plaintiff had finished his meal he went to the pinball machine, which he played for 10 or 15 minutes. Returning therefrom he suddenly slipped and fell. He stated that he did not know what caused him to fall.
Anthony Marcello, an attendant on an ambulance which was called to the scene, testified that when he arrived he found
the plaintiff flat on his back. Concerning the condition of the floor where plaintiff lay, Marcello testified:
"It looked like there was a piece of fat or a piece of bread that was soaked in gravy, and there was a skid mark where he had fallen. I would say, roughly, approximately eight to twelve, fourteen inches."
Katherine M. Joline, the waitress referred to above, testified that she was at the end of the counter when plaintiff fell. After he fell, she saw a piece of fat on the floor and "a long skid mark." She said that she served no one between 6:00 and 7:30 P.M. where the fat was found, and that the booths and tables were clean and there were no dishes on them.
Leroy L. Joline, husband of the waitress, testified that he was in the first booth in the rear. He did not see plaintiff fall, nor what caused him to fall, but hearing a crash either "alongside" of him or "more or less to the rear" of him, he turned and observed plaintiff lying on the floor "just opposite" where he was sitting. When plaintiff was lifted from the floor Joline noticed a "piece of fat" the "size of a quarter" at the end of a "skid mark" about 12 inches in length. He said also that during the half-hour he was on the premises nobody ate at any of the booths.
Plaintiff's case was posited upon the theory that the foregoing proofs and the inferences to be legitimately drawn therefrom circumstantially were susceptible of a finding that defendant, through his servant the bus boy, had negligently created the hazard which resulted in plaintiff's injury, by dropping to the floor and by failing to remove therefrom the substance which caused the plaintiff to slip. In resisting the motion for involuntary dismissal plaintiff conceded that there was no evidence that defendant had actual or constructive knowledge of the presence of the offending foreign matter on the floor, ...