Connors v. Newton

• Decision Date: 09 November 1908
• Parties: CONNORS v. NEWTON.
• Court: New Jersey Supreme Court

71 A. 36

77 N.J.L. 125

CONNORS

v. NEWTON.

Supreme Court of New Jersey.

Nov. 9, 1908.

(Syllabus by the Court.)

Appeal from District Court of Jersey City.

Action by John J. Connors, by his next friend, Annie Connors, against John H. Newton. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued June term, 1908, before REED, BERGEN, and VOORHEES, JJ.

James J. Murphy, for appellant.

Ziegener & Lane, for appellee.

VOORHEES, J. This is an appeal from the judgment of the First district court of Jersey City, rendered in favor of the defendant in an action brought to recover for personal injuries sustained by the plaintiff. The case was tried by the court without a jury. The appellant has specified two points pursuant to rule 90 of this court, viz., that the finding of the court was contrary to law, and that the verdict should have been for the plaintiff. Inasmuch as the determination of the judge is made final and conclusive upon questions of fact by section 205 of the district court act, and appeal is given only with respect to the determination of the court in points of law (section 206), it may be doubted whether in the present case sufficient specification under the rule has been made to entitle the appeal to be heard. Resolving this doubt in favor of the appellant, we have examined the state of the case as settled by the judge.

The plaintiff was injured on Sunday evening about 8 o'clock by stepping into an uncovered opening in a wooden stoop or platform leading from the sidewalk to the house owned by the defendant on Henderson street, Jersey City. The platform was used for an approach to a store in the possession of the defendant's tenants. It was about seven feet wide from the store door to the sidewalk. The hole was about one foot from the store window, and was 17 by 24 inches. The hole in the platform had formerly been covered by a door leading down into a cellar beneath the building, which, however, was wet, and not used for any purpose. Some time in 1906 the cellar door was removed, and the opening covered by stout slats, about 1 1/2 inches in thickness, leaving small apertures between the slats for ventilation. The slats were fastened down to the joists which supported the platform by brass screws. The tenants in the store from the time of putting down the slats had considerable trouble with mischievous boys in the neighborhood, who were accustomed wantonly to tear up the slats and leave the hole uncovered. This had been done late on Saturday night, or early on Sunday morning prior to the accident. The store was used as a candy and cigar store by William O'Toole and his wife, tenants of the defendant; Mr. O'Toole being...