Ellis v. Rosenberg

• Decision Date: 22 December 1936
• Docket Number: No. 26.,26.
• Parties: ELLIS v. ROSENBERG et al.
• Court: New Jersey Supreme Court

188 A. 499

ELLIS

v. ROSENBERG et al.

No. 26.

Supreme Court of New Jersey.

Dec. 22, 1936.

Appeal from Court of Common Pleas, Bergen County.

Action by Mary Ellis against Arthur Rosenberg and Irving Rosofsky, trading as Rosenberg Brothers, and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

Argued October term, 1936, before BROGAN, C. J., and CASE and PERSKIE, JJ.

Gerald McLaughlin, Paul J. Christiansen, and McCarter & English, all of Newark, for appellants.

Sydney Sher and Sher & Slier, all of Rutherford, for respondent.

CASE, Justice.

The appeal is by the defendants from a judgment for the plaintiff given by a jury in the Bergen pleas in a suit for personal injuries caused by a fall in the defendants' store. There was testimony which, in itself and in the legitimate inferences to be drawn therefrom, would sustain a factual finding that the plaintiff was a customer on the premises for the purpose of, and was in the act of, purchasing goods, and that while inspecting certain foods products she made a step and fell, to her injury; that the floor was in a defective condition, and that that condition was caused by wear over a considerable period of time (a sufficiently long time for the defendants, in the exercise of reasonable care, to have observed and remedied the defect); that a part of the defective condition was a small hole or depression in the floor; and that the cause of plaintiff's fall was that the heel of her shoe sank into that hole and threw her.

The appellants present three points for reversal, the first of which is that the court erred in refusing to grant the motion for a nonsuit, and the second of which is that the court erred in refusing to grant the motion for a direction of verdict in favor of the defendants and against the plaintiff. These points may be considered together.

The duty owed by the defendants to the plaintiff has been stated by our Court of Errors and Appeals thus: "The duty * * * was to exercise reasonable care to keep the floor of its store, to which it invited appellant, in such condition of repair that it would be reasonably safe for her, in the exercise of reasonable care upon her part, to be upon and about such premises or such parts thereof to which the invitation extended." Stark v. Great Atlantic & Pacific Tea Co., 102 N.J.Law, 694, 133 A. 172, 173. The jury could have found, and evidently did find, that the defects in the floor were such that they could not have come into existence...