Feingold v. S. S. Kresge Co., No. 140.
| Court | United States State Supreme Court (New Jersey) |
| Writing for the Court | BODINE, Justice. |
| Citation | 183 A. 170 |
| Parties | FEINGOLD et al. v. S. S. KRESGE CO. |
| Decision Date | 31 January 1936 |
| Docket Number | No. 140. |
FEINGOLD et al.
v.
S. S. KRESGE CO.
No. 140.
Court of Errors and Appeals of New Jersey.
Jan. 31, 1936.
1. A store customer injured by the unexplained fall of a picture display rack is entitled to recover damages.
2. A minor child entering a store with his mother, in order to make a purchase of candy, is a customer to whom the merchant owes a duty to refrain from causing negligent injury.
3. A point not raised in the court below is not a valid basis for a reversal in the appellate court.
Appeal from Supreme Court.
Action by Seymour Feingold, by Jacob L. Feingold, his father and next friend, and
Jacob L. Feingold, individually, against the S. S. Kresge Company. From the judgment, defendant appeals. Affirmed.
James B. Avis and Frank Sahl, both of Woodbury, for appellant.
George B. Marshall, of Woodbury, for appellees.
BODINE, Justice.
A woman, accompanied by her three and a half year old son, went to the defendant's store in Woodbridge to make a purchase of candy for him. The child while in the store was severely injured by the fall of a rack containing a display of pictures. The rack was a flimsy contrivance fastened neither to the floor or wall. There was no error in the submission of the case to the jury. Obviously, the doctrine of res ipsa loquitur applied. Law v. Morris, 102 N.J. Law 650, 133 A. 427, 46 A.L.R. 1108. Judge Green defined the doctrine in Mumma v. Easton & Amboy R. Co., 73 N.J.Law, 653, 65 A. 208, 210, as follows: "This principle is that when, through any instrumentality or agency under the management or control of a defendant or his servants, there is an occurrence, injurious to the plaintiff, which in the ordinary course of things would not take place if the person in control were exercising due care, the occurrence itself, in the absence of explanation by the defendant, affords prima facie evidence that there was want of due care."
The proofs showed that the picture rack was not only under the control of the defendant, but was constructed and set up by its manager. In the ordinary course of things display racks do not fall. The defendant offered no explanation as to how the accident occurred.
The pleadings and proofs raised an issue which the defendant failed to meet. There was no legal basis for either a nonsuit or a directed verdict.
The case went to the jury on the theory that the infant plaintiff was present in the store by invitation. "The rule is that an owner...
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Cleary v. City of Camden, No. 20.
...that there was want of due care. Mumma v. Easton & Amboy Railroad Co., supra; Feingold v. S. S. Kresge Co., 116 N.J.Law, 146, 147, 183 A. 170. The court did not say that the jury must draw an inference of negligence, but that such an inference, in effect, could be drawn. It was merely p......
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Farrier v. Levin
...Pacific Tea Co., above); a person entering with one who intends to make a purchase for him (Feingold v. S. S. Kresge Co., 116 N.J.L. 146, 183 A. 170 (E. & A. 1936)); and a person entering for the purpose of inspecting the merchandise, [176 Cal.App.2d 799] with at least a vague idea of b......
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Zappala v. Stanley Co. of Am., No. 3.
...N.T.L. 650, 133 A. 427, 46 A.L.R. 1108; Zboyan v. City of Newark, 104 N.J.L. 258, 140 A. 225; Feingold v. S. S. Kresge Co., 116 N.J.L. 146, 183 A. 170; Galbraith v. Smith, 120 N.J.L. 515, 1 A.2d 34; Gordon v. Weinreb, 181 A. 435, 13 N.J.Misc. The precise factual situation presented herein s......
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Murphy v. Kelly, No. A--599
...Davidson v. Providence Washington Ins. Co., 157 A. 148, 9 N.J.Misc. 1085 (Sup.Ct.1931); Feingold v. S. S. Kresge Co., 116 N.J.L. 146, 183 A. 170 (E. & A.1935); DenBraven v. Meyer Bros., 1 N.J. 470, 64 A.2d 219 (1949); Shimp v. Pennsylvania R.R. Co., 11 N.J.Super. 88, 78 A.2d 111 (App.Di......
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Cleary v. City of Camden, No. 20.
...that there was want of due care. Mumma v. Easton & Amboy Railroad Co., supra; Feingold v. S. S. Kresge Co., 116 N.J.Law, 146, 147, 183 A. 170. The court did not say that the jury must draw an inference of negligence, but that such an inference, in effect, could be drawn. It was merely p......
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Farrier v. Levin
...Pacific Tea Co., above); a person entering with one who intends to make a purchase for him (Feingold v. S. S. Kresge Co., 116 N.J.L. 146, 183 A. 170 (E. & A. 1936)); and a person entering for the purpose of inspecting the merchandise, [176 Cal.App.2d 799] with at least a vague idea of b......
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Zappala v. Stanley Co. of Am., No. 3.
...N.T.L. 650, 133 A. 427, 46 A.L.R. 1108; Zboyan v. City of Newark, 104 N.J.L. 258, 140 A. 225; Feingold v. S. S. Kresge Co., 116 N.J.L. 146, 183 A. 170; Galbraith v. Smith, 120 N.J.L. 515, 1 A.2d 34; Gordon v. Weinreb, 181 A. 435, 13 N.J.Misc. The precise factual situation presented herein s......
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Murphy v. Kelly, No. A--599
...Davidson v. Providence Washington Ins. Co., 157 A. 148, 9 N.J.Misc. 1085 (Sup.Ct.1931); Feingold v. S. S. Kresge Co., 116 N.J.L. 146, 183 A. 170 (E. & A.1935); DenBraven v. Meyer Bros., 1 N.J. 470, 64 A.2d 219 (1949); Shimp v. Pennsylvania R.R. Co., 11 N.J.Super. 88, 78 A.2d 111 (App.Di......