Cleary v. Meyer Bros, 1.

• Decision Date: 10 January 1935
• Docket Number: No. 1.,1.
• Citation: 176 A. 187
• Parties: CLEARY et al. v. MEYER BROS.
• Court: New Jersey Supreme Court

176 A. 187

CLEARY et al.

v. MEYER BROS.

No. 1.

Court of Errors and Appeals of New Jersey.

Jan. 10, 1935.

Syllabus by the Court.

Where the evidence, with all fair and legitimate inferences arising therefrom, is insufficient to sustain a verdict for the plaintiff, which would be set aside, if rendered, the court should direct a verdict for the defendant.

Appeal from Circuit Court, Passaic County.

Action by Frances Cleary and husband against Meyer Brothers, a corporation. Judgment for plaintiffs, and defendant appeals.

Judgment reversed.

George F. Lahey, Jr., of Newark, for appellant.

Seufert & Elmore, of Englewood, for respondents.

HETFIELD, Judge.

Suit was instituted by the plaintiffs, who are husband and wife, for personal injuries alleged to have been sustained by the wife, through the negligence of the defendant, and this appeal brings up for review a judgment based upon the jury's verdict which awarded the wife $1,000, and the husband $500.

The facts show that on August 9, 1929, the plaintiff Frances Cleary entered the department store conducted by the defendant in Paterson, N. J., and after making a purchase, had occasion to visit the ladies' rest room. The entrance to the rest room consisted of two swinging doors, in front of which was a step about 8 inches higher than the outside floor, the outer edge of the step being approximately 24 inches from the base of the doors. When leaving the room and passing through the entrance, Mrs. Cleary fell, and as a result sustained a fractured wrist.

The defendant contends that the trial court erred in refusing to nonsuit and to direct a verdict in its favor.

The complaint alleges "that the said fall of the plaintiff, Frances Cleary, was caused by the improper location, construction and maintenance of the doors and steps forming the exit from said rest room," and that "the defendant was negligent in causing said doors and stairs of said exit to be constructed and maintained in such a dangerous, careless and negligent manner. The improper construction and maintenance of said doors and stairs was a nuisance maintained by said defendant," and further that "the defendant failed and neglected to maintain a guard at said exit, to protect its patrons and business invitees from injury."

The record indicates that Mrs. Cleary was the only witness produced on behalf of the plaintiffs to support the allegations contained in the complaint; and we do not find that her testimony established any facts from which negligence might be reasonably inferred, or to show that the defendant had violated its duty toward the plaintiff, who was an invitee, to exercise ordinary care to render the premises reasonably safe for the purpose for which she entered. Her version of the conditions which existed and the circumstances relating to the happening is best illustrated by quoting her testimony in part:

"Q. Will you tell the Court and jury just what happened while you were in Meyer Brothers' store? A. Well, I went into the store and I got a pair of bedroom slippers for my daughter, then we went to the rest room; coming out of the rest room I pushed this swing door and made one step forward and fell. * * *

"Q. Was it clear inside the ladies' rest room there?' A. Yes, sir.

"Q. Was it light outside the rest room when you got out? A, Well, there was no light lit; it was just from the light from the out door. * * *

"Q. You pushed the door like that (illustrating)? A. Yes, pushed the door out and made one step and fell.

"Q. Went down immediately? A. Yes.

"Q. Do you know how wide that step was? Do you recall at all? A. No; I didn't know just how wide, but it was—all I remember it was marble, all this kind of pink marble. * * *

"Q. As you opened the door coming out, Mrs. Cleary, you saw this step, did you not? A. Well, I knew there was a step there, yes.

"Q. Yes; you knew it was there from the fact that you had ascended it but a moment before; is that right? A. Yes.

"Q. A few moments before? A. I just pushed the door and I started.

"Q. Just a minute. Just a few minutes before, I say, as you went into this room you had ascended this marble step? A. Yes. * * *

"Q. Now, I am asking you, as you opened that door to go out did you see the step? A. Yes.

"Q. You did? There was nothing to prevent you seeing it, was there? A. No, I could see it.

"Q. There was plenty of light there? A. Well, there was light, of course.

"Q. I say, there was plenty of light? A. Yes, there was light. There was no light lit, but it was just from the windows.

"Q. There was plenty of natural light? A. Yes, natural light. * * *

"Q. You saw the step as you came out; Is that right? A. Yes, sir.

"Q. What caused you to fall? A. Well, I don't know. * * *

"Q. I know that you fell, but I am asking, you don't know what caused you to fall? A. No. * * *

"By the Court:

"Q. Do you know what caused you to fall? A. No, sir, I do not. I don't know if there was any wet there or anything there, because I just fell, that is all I remember. I can not—

"Q. What kind of doors were these? A. Just a closed swing door; it was no window in it * * *

"Q. As you pushed it open you stepped? A. I made * * * started to make—made one step forward and I fell. The step was right nearby.

"Q. Well, you took this one step. What caused you to fall? A. I don't know. Something probably there I don't understand, because—

"Q. Was the step level with the door or — A. No.

"Q. Below the door or what? A. There seemed to be a little space there. If you push the door open there was a space there, just enough to take about one or two steps. * * *

"By Mr. Lahey:

"Q. There was nothing the matter with the step, was there? A. No.

"Q. There was a white marble step in good condition? A. It was kind of a pink marble step. There was two there, two steps. * * *"

There was also admitted in evidence, with out objection, a statement signed by Mrs. Cleary a few days after the accident, which reads in part: "I had been in the ladies rest room and upon leaving I pushed the swinging door outward and I misjudged my step and fell forward to the floor. * * * When I came...