Lynch, Larner and Fulop. The opinion of the court was delivered by Larner, J.A.D.
On December 1, 1971 plaintiff Francis Dwyer was on the premises located at 92 Newark Avenue, Jersey City, New Jersey, owned by defendants John T. Mendez and Josephine Mendez. He was in the process of installing new plumbing facilities as a subcontractor of Efficiency Heating and Appliance Company which had been retained by the owners as the prime contractor for the job.
Defendant Erie Trading Corp. was a tenant conducting a check cashing business on the first floor of the building. The upper two floors contained apartments which were unoccupied at the time of the incident leading to this litigation.
On the assumption of the evidence most favorable to plaintiff, the following operative facts are controlling.
During the course of his work in preceding days plaintiff found a hole on one side of the building approximately 2' x 3' which led to a crawl space between the first and second floors. Inside this hole there was some type of air shaft with a piece of grating across the opening. Past the grating was a continuation of the crawl space which ultimately, with
appropriate maneuvering, could lead one to the rear of the store premises of Erie Trading. The hole in the outside wall was the result of a fire which had destroyed a building adjacent to the one in question. The hole was located approximately 8' above street level, although there was debris on the adjoining property which made it more easily accessible. Plaintiff had notified both the tenant and owner of the existence of the hole approximately two weeks prior to the incident when he discovered it while running heating lines between the basement and the upper floors. He warned them that someone could gain entrance that way and also that there was danger of the freezing of water pipes. They said they would look into it, but no repairs were made during the two-week interim period.
There was also some very general testimony that the locale of this building was part of a run-down urban scene wherein there was a considerable amount of crime and that the day after the fire vandals had entered the building through broken windows and doors and removed some of the copper piping and fixtures.
At approximately 6 A.M. on December 1 plaintiff arrived at the premises to complete his work on the second floor so that a tenant could move in later that day. There were no other persons in the building at the time. After about half an hour plaintiff heard some noises below. He leaned out of the second-story window and saw a black man emerging from the hole in the wall about three feet below him. Plaintiff did not recognize him as having any connection with the owner or tenant and demanded to know what he was doing there. In view of the absence of a response and his assumption that the man was a burglar, plaintiff picked up a metal garbage can and threw it at the intruder. Thereupon the latter drew a gun, shot at plaintiff, causing injuries to his arm and back.
Plaintiff brought suit against the tenant and owner, seeking damages flowing from the act of the intruder on the theory that they owed him the duty to provide a safe place
in which to work and that their failure to repair the hole in the wall constituted a negligent violation of that duty proximately resulting in his injuries and damages.
One trial resulted in a disagreement. At the second trial defendants moved for judgment on the following grounds: that there was an absence of proof of primary negligence and that plaintiff was guilty of contributory negligence as a matter of law. The ...