Sullivan, Kolovsky and Carton. The opinion of the court was delivered by Kolovsky, J.A.D.
On April 29, 1963 plaintiffs instituted this personal injury negligence action against defendant Michael J. Cisero, the driver of an automobile which struck infant plaintiff Christine on December 27, 1961 while she was on a sled in the middle of Mount Prospect Place in Newark. Christine had coasted down a snow-covered slope into the roadway. The short slope extended from the rear of a Shop-Rite food market area to the level of Mount Prospect Place, some 15 feet below.
On August 16, 1963 plaintiffs amended their complaint to add as party defendant Daitch Dairies, the alleged owner and occupant of the food market premises, charging that it "negligently, carelessly and recklessly permitted, maintained and encouraged the use of its premises as a playground" and thus created a nuisance, and that as a result thereof infant plaintiff was injured. Thereafter plaintiff added as defendants the parties listed in the caption other than Cisero, charging that they, too, were owners and ocupants of the premises. (The added parties will be referred to collectively as "Shop-Rite.") At the end of plaintiffs' case a dismissal was ordered, by consent, as to Daitch Dairies.
After the complaint was amended to join Shop-Rite as defendant, the action could no longer be classified as an automobile negligence action; a pretrial conference should have
been held. R.R. 4:29-1. It was not, and thus additional problems were created for the trial judge.
The jury returned a verdict of no cause for action as against Michael Cisero, the driver of the automobile, and verdicts in favor of plaintiffs against Shop-Rite, $10,000 for Christine and $5,000 for her mother Edith. The court thereafter denied Shop-Rite's motion for a new trial but reduced the verdict in favor of the mother from $5,000 to $3,305, the amount of her medical expenses.
Shop-Rite appeals from the judgment and from the denial of the motion for a new trial. Both plaintiffs appeal from the judgment in favor of defendant Cisero, and plaintiff Edith appeals from the reduction in the amount of the verdict in her favor.
The Shop-Rite food market and its adjacent parking area had been constructed on a large vacant tract whose level was higher than Mount Prospect Place, one of its boundary streets. The angle of the slope extending from the level of the market to Mount Prospect Place had been modified during the course of construction. A police officer, who lived on Mount Prospect Place, testified that prior to the construction there had been a "sudden drop"; this had been changed to a slope less steep than before. Plaintiff Edith testified to the contrary, that the construction made the hill steeper. The photographs of the scene taken subsequent to the accident reveal a short, moderate slope. Some small bushes or shrubs were planted in spots on the slope, but many of the shrubs remained in place only a short time. The food market opened for business in June 1961. The first snowfall of the season was on December 27, 1961, the date of the accident here involved.
There was evidence that on occasions between June and December 27 children played on top of the slope and on the slope itself. There was no proof that this was with Shop-Rite's consent, but plaintiffs argue that such consent may be inferred from the fact that children did on occasion enter and play in the area. Shop-Rite denied that the children's presence
was with its permission or consent and offered evidence that children found playing there had been chased away.
On December 27, 1961 Christine was nine years of age. She testified that shortly before 5 P.M. on that day she went over to the "Shoprite hill, where all the kids were playing." The area was covered with snow; plaintiffs contend that some of the snow had been bull-dozed down the slope from the neighboring parking lot. According to Christine, there were approximately ten children on the hill. Some were building snowmen and throwing snowballs. Others were coasting down the slope on a path they had worn in the snow, using sleds and crushed cardboard boxes. After joining the group ...