Kilkenny, Goldmann and Leonard. The opinion of the court was delivered by Kilkenny, J.A.D.
[89 NJSuper Page 453] The infant plaintiff sued defendants in negligence in the Superior Court, Law Division, to recover
damages for personal injuries sustained by him on December 31, 1961, while sledding down a pathway through wooded, unfenced, vacant land owned by defendants, in Plainfield, New Jersey. With another boy aboard the sled, infant plaintiff seemingly lost control of the sled for some unexplained reason and steered it into a tree at the side of the pathway. Plaintiff was 15 1/2 years old at the time of the accident. His father joined in the suit for damages per quod.
Defendants moved for a judgment of involuntary dismissal at the close of plaintiffs' proofs. The trial court granted the motion. Plaintiffs appeal from the judgment of dismissal.
The path in question had been created by persons walking through the woods, thereby trampling down any growth along the pathway. It had no special traps, holes, obstacles, or artificially created conditions, potentially dangerous thereon. The path, about five feet wide, led through the woods from the public highway to a pond in the rear of the tract. This wooded and undeveloped plot was situated in a built-up area and people in the neighborhood used it, without any express permission of the owners, for skating on the pond, sledding down the pathway and the running of dogs. The infant plaintiff testified that he had been on the property at least 20 times. There was also testimony by a police officer that defendant Vera M. Braverman told him, when he reported the incident to her, that she knew that "children had trespassed upon her property frequently and that it was a problem and that she was going to complain to the police about it." The pathway had not been blocked off by any means and there were no posted signs forbidding trespassing.
On the day in issue there was snow on the pathway, about two or three inches deep and packed down. The actual sledding run, which began a few steps from the top of the incline and ended before the street at the bottom, was estimated to be from 80 to 100 yards long. The steepness of the path was not accurately described, but the boy who had been sledding with the infant plaintiff testified:
"Well, it was fairly steep and you could just give it, just push it, or just do what you say, a belly flopper, or whatever it was, and just proceed that way."
The same boy stated that if a sledder went straight down the pathway, he would "have to drag his feet an awfully long way" to avoid going out into Woodland Avenue.
The infant plaintiff testified that he had been sledding on the pathway for about three or four hours before the accident occurred about 2 P.M. He had ridden down the pathway about 15 times before this particular incident. In the downward run during which he was injured, plaintiff was lying on the front of the sled and steering, while his friend, John Farrington, was kneeling on the sled between plaintiff's legs. John's version was that "the runner of the sled got caught in some high snow and it brought us into the tree." Plaintiff's version was that "towards the right side of the path I might have hit a bump or something. * * * possibly a branch or soft snow, or my foot dragged or something of that sort, and so I steered off to the left to get in the center of the path. Then I must have hit something which threw me off the path and into a tree." Additional testimony by plaintiff indicated that he did not believe that he had hit deep snow, as John stated, because "If you hit the deep snow you usually come to a stop." And further:
"I think I just swerved to the right and instead of keeping going into the snow I pulled the sled back to the left side of the path and then I hit the left side of the path somehow and I just came to an abrupt stop where I flew off."
The gist of plaintiff's argument, as we understand it, is that defendants knew, or ought to have known, that children were coming upon their land, either as trespassers or implied licensees, and using it for sledding, skating and other recreational purposes, and they did nothing to restrain these users of the land, by fencing in the land, or posting signs, or taking personal or police action ...