Bodine v. Goerke Co.

• Decision Date: 17 May 1926
• Docket Number: No. 73.,73.
• Citation: 133 A. 295
• Parties: BODINE et ux. v. GOERKE CO.
• Court: New Jersey Supreme Court

133 A. 295

BODINE et ux.

v. GOERKE CO.

No. 73.

Court of Errors and Appeals of New Jersey.

May 17, 1926.

(Syllabus by the Court.)

Kalisch, Campbell, and McGlennon, JJ., dissenting.

Appeal from Supreme Court.

Action by Wilma L. Bodine and wife against the Goerke Company. Judgment for plaintiffs, and defendant appeals. Reversed for a venire de novo.

Prank G. Turner, of Jersey City, for appellant.

Abe J. David, of Elizabeth, for respondents.

BLACK, J. The only question involved on the appeal of this case is whether negligence may be reasonably inferred from the testimony. If none, there is no case to go to a jury. That is the test which has been stated, approved, and applied in many cases. Metropolitan Ry. Co. v. Jackson, L. R. 3 App. Cases, 197; Newark Pass. Ry. Co. v. Block, 55 N. J. Law, 607, 27 A. 1067, 22 L. R. A. 374; Donus v. Public Service Ry. Co. (No. 9, February term, 1926, N. J.) 133 A. 196. The trial judge submitted the ease to the jury, resulting in verdicts for the plaintiffs, husband and wife. This is the meritorious question alleged as error in the grounds of appeal.

The dominant facts in the record may be thus summarized: The plaintiff Wilma L. Bodine, on January 24, 1923, at about 12:20 p. m., fell or slipped at the entrance or lobby of the defendant's store at the corner of Cedar and Broad streets in the city of Newark. At that time it was "slushy like dirty snow"; "sloppy and slushy." It commenced to snow "at 9 a. m. and stopped at 3 p. m." Mrs. Bodine testified:

"Q. You hadn't gotten into the store? A. I was in the vestibule and hadn't gone in the revolving doors as yet. * * * I was in the entrance to the Goerke store. * * * There is a show case there, and I had just passed it when I fell.

"Q. What took you there? A. I wanted to do some shopping." The floor of the entrance was "very slush, like dirty snow." The entrance "slopes a bit. I wore black satin pumps; they were wet when I reached Goerke's, as I had walked from Bamberger's to Plant's through the snow and from Plaut's to Goerke's through the snow. When I fell, I broke my left arm." The entrance, "it was like a slush; it was dirty, because my clothes were dirty afterwards."

"Q. When you say slush, you mean it was soft; rain mixed with the snow? A. Yes."

The facts are not in dispute; nor can different inferences be drawn from the facts. The only allegation in the complaint charging negligence, in substance, is to the effect that the defendant allowed snow to remain on the store entrance or approach for an unreasonable length of time, having notice thereof that it would be slippery and dangerous to persons using the same. There is no allegation in the complaint or any testimony of any structural defect in the floor of the entrance or vestibule of the defendant's store where the plaintiff slipped and fell.

The case is clearly distinguished from that class of cases of which Cooper v. Bernhardt, 91 N. J. Law, 402, 103 A. 24, is illustrative. In that case, ice was allowed to remain on the steps of the defendant's hotel for 3 1/2 hours after the snow had stopped falling, and where the plaintiff was a guest leaving the premises just after dark, he slipped on a coating of frozen snow and ice. In Schnatterer v. Bamberger, 81 N. J. Law, 558', 79 A. 324, 34 L. R. A. (N. S.) 1077; where the injury was caused by tripping on a stairway...