Dashine v. Peres

• Decision Date: 06 December 1932
• Docket Number: No. 427.,427.
• Citation: 163 A. 231
• Parties: DASHINE et al. v. PERES.
• Court: New Jersey Supreme Court

163 A. 231

DASHINE et al.

v. PERES.

No. 427.

Supreme Court of New Jersey.

Dec. 6, 1932.

Action by Annie Dashine and another against Gussie Peres. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Argued May term, 1932, before TRENCHARD, CASE, and BROGAN, JJ.

Aaron L. Simon, of Passaic, for appellant.

Ely & Ely, of Rutherford (J. S. T. Stranahan Ely, of Rutherford, of counsel), for respondents.

PER CURIAM.

The female plaintiff, while walking along the sidewalk on which the defendant's premises abutted, was injured by stepping into a cellar opening. There were two iron doors over the entrance to the cellar, and these doors, when closed, fitted against each other flush with the sidewalk. At the time of the accident, a nine year old child, the son of a tenant, was in the act of opening one of these doors for the purpose of taking his sled to the cellar. The evidence sustains the finding that as the child was laboring with the door, holding it open, Mrs. Dashine inadvertently stepped into the cellarway and was thrown; and that the child, alarmed by the mishap, loosened his hold upon the door, whereupon the door closed upon the plaintiff's leg and foot. The action by Mrs. Dashine for her personal injuries was joined in by her husband for incidental loss. The matter was heard by the judge of the Clifton district court, sitting without a jury. Judgment was awarded the plaintiffs.

The appellant presents three points; namely, the refusal to nonsuit, the entry of final judgment for the plaintiffs instead of for the defendant, and the absence of evidence upon which a judgment for the plaintiffs could be rendered.

On the motion for a nonsuit two grounds were assigned, first, that there was no proof that the defendant was the owner of the premises; and, second, even if ownership be assumed, the injury was caused by the child, for whose act the defendant was not responsible. As to the first ground we consider that the proven facts and the legitimate inferences to be drawn therefrom sustain a finding, not only that Mrs. Peres was the owner, but also, and clearly, that she installed and paid for the doors in question. Our views on the second ground are hereinafter expressed.

Criticisms of the state of demand, expressed in appellant's brief, seem not to have been raised at the trial.

The remaining issue in the case is whether Mrs. Peres, an owner whose lands abutted the highway, and who had used the highway in front of her premises for the construction of a cellar entrance, had, in so doing, complied with the duty laid down by the Court of Errors and Appeals in Sutphen v. Hedden, 67 N. J. Law, 324, 51 A. 721, and enunciated in other cases, of exercising reasonable care to guard against accident therefrom to...