Berger v. Shapiro, No. A--164

CourtNew Jersey Superior Court – Appellate Division
Writing for the CourtFREUND
Citation144 A.2d 900,52 N.J.Super. 94
PartiesSarah BERGER, Plaintiff-Appellant, v. Samuel SHAPIRO, Defendant-Respondent. . Appellate Division
Docket NumberNo. A--164
Decision Date23 September 1958

Page 94

52 N.J.Super. 94
144 A.2d 900
Sarah BERGER, Plaintiff-Appellant,
v.
Samuel SHAPIRO, Defendant-Respondent.
No. A--164.
Superior Court of New Jersey.
Appellate Division.
Argued Sept. 8, 1958.
Decided Sept. 23, 1958.

Page 97

[144 A.2d 902] Herman M. Wilson, Newark, for plaintiff-appellant.

H. Curtis Meanor, Trenton, for defendant-respondent (Emory, Langan, Lamb & Blake, Jersey City, attorneys; James J. Langan, Jersey City, and H. Curtis Meanor, Trenton, of counsel and on the brief).

Before Judges GOLDMANN, FREUND and CONFORD.

Page 98

The opinion of the court was delivered by

FREUND, J.A.D.

This is a negligence action wherein at the conclusion of the entire case a judgment of involuntary dismissal was entered by the County Court, and the plaintiff appeals.

Sarah Berger, about 70 years of age, came from Florida to attend a family wedding in September 1955 and stayed at the home of her daughter and son-in-law in Cedar Grove, New Jersey. She had been a social guest there for two or three weeks prior to the accident on September 13, 1955.

Mrs. Berger had been suffering from glaucoma for 13 years, and her vision was so seriously impaired that at the trial she was unable to identify a photograph of the steps from which she fell. She testified to being unable to see clearly, that 'everything is shadowy like.' Ordinarily, some one helped her in and out of the house; indeed, plaintiff testified that she always had some one with her as she ascended the porch steps. Generally, she used the back entrance where there is a banister.

On September 13, 1955 plaintiff was sitting on the lawn in front of defendant's [144 A.2d 903] home. Her sister was inside the house, and defendant's wife was next door with a neighbor. Plaintiff decided she wanted something inside the house. She testified as to what followed:

'So I thought I will go myself. So I walked up slowly, up the steps, and when I opened the door, I went back so the door would open, and my foot went into something that was empty and I fell down and broke my foot.'

That 'empty something' into which plaintiff stepped may have been the space previously occupied by a brick, for the testimony discloses that in July 1955 defendant's wife, Mrs. Shapiro, removed two bricks, one from each end of the top step. The stated reason for that act was that they had been loose. She informed her husband shortly after their removal, but they were never replaced because the defendant had resolved to install an iron railing in their stead. However, he never did.

Page 99

After the defendant concluded his case, his attorney moved for judgment on the ground that the only duty owed to a social guest is to refrain from willful or wanton negligence and that plaintiff had been guilty of contributory negligence as a matter of law. The trial judge granted the motion because of 'lack of evidence' indicating that 'the space caused by the removal of the brick' was the 'natural and proximate cause of her fall.' This appeal followed.

Initially, we direct our attention to the reason advanced by the trial judge for dismissing the complaint; viz., did the removal of the bricks cause plaintiff's fall? We note that this is not a question of proximate cause in the usual sense; it is whether there is any causal connection at all. McCappin v. Park Capitol Corp., 42 N.J.Super. 169, 126 A.2d 51, 58 A.L.R.2d 1285 (App.Div.1956); Genovay v. Fox, 50 N.J.Super. 538, 561, 562, 143 A.2d 229 (App.Div.1958); 65 C.J.S. Negligence § 106. The question is whether it was open to a jury to find that the space from which one of the bricks had been removed was that into which Mrs. Berger stepped and fell.

In proceeding to that determination, we are not unmindful of a salutary body of rules, ever-ready to guide our courts in passing upon motions to dismiss. A weighing of the evidence is not permitted on a motion to dismiss. To the contrary, if on such a motion any of the evidence would cause fair-minded men to differ as to whether there was a reasonably probable relation of cause and effect between the alleged negligence and the injuries, the issue must be submitted to the jury for its determination. Vadurro v. Yellow Cab Co. of Camden, 6 N.J. 102, 77 A.2d 459 (1950); Stanley Co. of America v. Hercules Powder Co., 29 N.J.Super. 545, 554, 103 A.2d 33 (App.Div.1954), reversed on other grounds 16 N.J. 295, 108 A.2d 616, 45 A.L.R.2d 1106 (1954); Bergquist v. Penterman, 46 N.J.Super. 74, 89, 134 A.2d 20 (App.Div.1957), certification denied 25 N.J. 55, 134 A.2d 832 (1957). It is also well settled that on a motion for involuntary dismissal the trial judge must accept as true all evidence supporting the position of the party against whom the motion is made, and must give him the benefit of all inferences that may logically and legitimately be drawn therefrom. O'Donnell

Page 100

v. Asplundh Tree Expert Co., 13 N.J. 319, 328, 99 A.2d 577 (1953); Melone v. Jersey Central Power & Light Co., 18 N.J. 163, 170, 113 A.2d 13 (1955).

Also at our disposal is the rule that the test of the sufficiency of evidence in a civil action is probability, not possibility. Bornstein v. Metropolitan Bottling Co., 26 N.J. 263, 139 A.2d 404 (1958); Joseph v. Passaic Hospital Ass'n, 26 N.J. 557, 574, 575, 141 A.2d 18 (1958); Kahalili v. Rosecliff Realty, Inc., 26 N.J. 595, 607, 141 A.2d 301 (1958). In Bornstein (26 N.J. 263, 139 A.2d 411), a Res ipsa loquitur case wherein the court affirmed submission of the case to the jury, Justice Heher stated:

'It is not easy to lay down with precision the line of demarcation between a [144 A.2d 904] just and reasonable inference and mere conjecture or surmise. The accepted standard of persuasion is that the determination be probably founded in truth.'

Consequently, our task is to determine whether it is reasonably probable or simply conjectural that the space left by the removal of the brick caused plaintiff's fall.

That task becomes less formidable once we reflect upon the testimony in...

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8 practice notes
  • Mayer v. Housing Authority of Jersey City, No. A--653
    • United States
    • New Jersey Superior Court – Appellate Division
    • 30 Junio 1964
    ...of cause and effect between the alleged negligence and the injuries, the issue must be submitted to the jury. Berger v. Shapiro, 52 N.J.Super. 94, 99, 144 A.2d 900 (App.Div.1958), affirmed 30 N.J. 89, 101, 152 A.2d 20 (1959). See also Vadurro v. Yellow Cab Co. of Camden, 6 N.J. 102, 77 A.2d......
  • Pabon v. Hackensack Auto Sales, Inc., No. A--514
    • United States
    • New Jersey Superior Court – Appellate Division
    • 31 Octubre 1960
    ...571 (Super.Ct.1959). The test of the sufficiency of evidence in a civil action is probability and not possibility. Berger v. Shapiro, 52 N.J.Super. 94, 100, 144 A.2d 900 (App.Div.1958), affirmed 30 N.J. 89, 152 A.2d 20 (1959). Defendants' apparent effort to demonstrate the synonymity of the......
  • Berger v. Shapiro, No. A--101
    • United States
    • United States State Supreme Court (New Jersey)
    • 1 Junio 1959
    ...by PROCTOR, J. The Appellate Division reversed a judgment dismissing plaintiff's negligence suit at the close of all the evidence. 52 N.J.Super. 94, 144 A.2d 900 (1958). We certified upon the defendant's application. 28 N.J. 306, 146 A.2d 144 The plaintiff, Sarah Berger, an elderly woman, c......
  • Pearlstein v. Leeds, No. A--373
    • United States
    • Superior Court of New Jersey
    • 12 Noviembre 1958
    ...45 N.J.Super. 428, 133 A.2d 50 (App.Div.1957); Debes v. Morganroth, 48 N.J.Super. 39, 136 A.2d 896 (App.Div.1957); Berger v. Shapiro, 52 N.J.Super. 94, 144 A.2d 900 (App.Div.1958). In each the court approached the problem by determining the status of the plaintiff and then applying the rule......
  • Request a trial to view additional results
8 cases
  • Mayer v. Housing Authority of Jersey City, No. A--653
    • United States
    • New Jersey Superior Court – Appellate Division
    • 30 Junio 1964
    ...of cause and effect between the alleged negligence and the injuries, the issue must be submitted to the jury. Berger v. Shapiro, 52 N.J.Super. 94, 99, 144 A.2d 900 (App.Div.1958), affirmed 30 N.J. 89, 101, 152 A.2d 20 (1959). See also Vadurro v. Yellow Cab Co. of Camden, 6 N.J. 102, 77 A.2d......
  • Pabon v. Hackensack Auto Sales, Inc., No. A--514
    • United States
    • New Jersey Superior Court – Appellate Division
    • 31 Octubre 1960
    ...571 (Super.Ct.1959). The test of the sufficiency of evidence in a civil action is probability and not possibility. Berger v. Shapiro, 52 N.J.Super. 94, 100, 144 A.2d 900 (App.Div.1958), affirmed 30 N.J. 89, 152 A.2d 20 (1959). Defendants' apparent effort to demonstrate the synonymity of the......
  • Berger v. Shapiro, No. A--101
    • United States
    • United States State Supreme Court (New Jersey)
    • 1 Junio 1959
    ...by PROCTOR, J. The Appellate Division reversed a judgment dismissing plaintiff's negligence suit at the close of all the evidence. 52 N.J.Super. 94, 144 A.2d 900 (1958). We certified upon the defendant's application. 28 N.J. 306, 146 A.2d 144 The plaintiff, Sarah Berger, an elderly woman, c......
  • Pearlstein v. Leeds, No. A--373
    • United States
    • Superior Court of New Jersey
    • 12 Noviembre 1958
    ...45 N.J.Super. 428, 133 A.2d 50 (App.Div.1957); Debes v. Morganroth, 48 N.J.Super. 39, 136 A.2d 896 (App.Div.1957); Berger v. Shapiro, 52 N.J.Super. 94, 144 A.2d 900 (App.Div.1958). In each the court approached the problem by determining the status of the plaintiff and then applying the rule......
  • Request a trial to view additional results

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