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Tomney v. Ebeling

Decided: March 10, 1969.

BARBARA ANN TOMNEY AND CHARLES J. TOMNEY, PLAINTIFFS-APPELLANTS,
v.
FRANCES EBELING, DEFENDANT-RESPONDENT



Goldmann, Kolovsky and Carton.

Per Curiam

Plaintiffs appeal from a judgment of involuntary dismissal entered on defendant's motion at the close of plaintiffs' case.

Plaintiffs contend that the evidence offered by them and the favorable inferences legitimately to be drawn therefrom, whose truth must be assumed for the purpose of the motion,

Melone v. Jersey Central Power & Light Co., 18 N.J. 163, 170 (1955), would justify a jury finding that defendant was negligent and that therefore the trial court erred in granting the motion. They say further that even if the evidence which they had offered prior to resting their case be deemed insufficient, the testimony which they proposed to adduce when they thereafter moved to reopen their case would have eliminated the deficiency and that the court abused its discretion in denying the motion to reopen.

Plaintiffs Barbara A. Tomney and Charles J. Tomney, husband and wife, are tenants of the defendant. With their four children they occupy the first-floor apartment of the two-family house at 191 Belvedere Avenue, Jersey City, owned by defendant. Defendant is Barbara's grandmother. She lives in the second-floor apartment with her daughter Mrs. Harris, who is Barbara's mother.

A door leads from the front porch of the house into a vestibule, some two feet deep, with a door in its rear wall opening onto a hallway. Entrance to the first-floor apartment is through a door at the left side of the hallway; entry to the second floor is by way of a stairway which starts at the rear of the hallway beyond the entrance door of the first-floor apartment.

The hallway floor is covered with linoleum. At the foot of the stairs, with its back edge flush against the riser of the first step, was a small wool throw rug, "a little over 2 feet wide" and "18 to 20 inches deep." The throw rug was a piece of carpet runner which had covered the stairs for some 13 years and had been cut off when the runner was altered some two years before. The throw rug rested directly on the linoleum.

According to Barbara, there had been no difficulty of any kind with the throw rug during the two years that it had been on the hallway floor prior to the date of the accident. As far as she knew, no one had ever slipped on it. There was another throw rug in the vestibule over which anyone

entering the house would have to walk, but one entering plaintiffs' apartment would not pass over the throw rug in the hallway; that throw rug was "there solely for the upstairs apartment."

Barbara had washed the hallway several days before, a task she usually performed at least once a week. She had shaken out and then replaced the rug. All she noticed about it was, as she "knew," that "it was old," and "was worn on top."

Sunday, April 26, 1964, was the grandmother's 80th birthday and was to be celebrated at a dinner party in her apartment to which the family and friends were invited. At the time of the accident, of which she was the only witness, Barbara was carrying a covered pot of boiling turnips from the first-floor apartment to the second floor. She was wearing a pair of ...


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