Francisco v. Miller

• Decision Date: 05 June 1951
• Docket Number: No. A--254,A--254
• Parties: FRANCISCO v. MILLER et al.
• Court: New Jersey Superior Court — Appellate Division

Page 290

14 N.J.Super. 290

81 A.2d 803

FRANCISCO v. MILLER et al.

No. A--254.

Superior Court of New Jersey

Appellate Division.

Argued May 21, 1951.

Decided June 5, 1951.

James R. Laird, Jr., Asbury Park, argued the cause for appellant (John A. Hartpence, Jersey City, of counsel).

William H. D. Cox, Newark, argued the cause for respondents (Cox & Walburg, Newark, attorneys).

Before Judges McGEEHAN, JAYNE, and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

JAYNE, J.A.D.

By way of a preface to the discussion of the subject matter of the present appeal it is informative to disclose that the plaintiff instituted this action Ex delicto against the executrices of the will of Charles M. Herman, deceased, and against the Asbury Park National Bank and Trust Company. At the inception of the trial the plaintiff submitted to a voluntary dismissal of his alleged cause of action against the latter defendant, and at the conclusion of the evidence introduced by the plaintiff and the defendants, the trial judge directed the entry of a judgment in favor of the executrices of the estate of the decedent. The propriety of the action of the trial judge in the respect last mentioned is the basic subject transported to us for determination.

The evidence described the occurrence of a very unfortunate mishap. For present purposes the narrative need only be summarized.

One Charles M. Herman, the mortgagee of the premises known as the Hotel Whitfield at Occan Grove, Monmouth County, was destined to reacquire the ownership of the property, and he engaged the services of the plaintiff, a carpenter, to make certain alterations of the building to conform with the governmental fire protection requirements applicable to hotels of such conformation.

One of the proposed alterations involved the conversion of a window on the fourth floor of the west wing of the building into a doorway opening on the platform approximately 4 4 of an iron fire escape which for some period of time had existed beneath the window and formed a bridge over the alleyway which separated the two wings of the hotel building. It was intended to provide an emergency passageway from the west wing to the poof of the east wing and to the ladder of a fire escape leading to the ground.

On June 7, 1950, while pursuing a preliminary examination of the proposed alterations, Mr. Herman first stepped out of the window onto the platform of the fire escape, and when the plaintiff, who immediately followed him, came upon it, the platform collapsed. Both Mr. Herman and the plaintiff fell to the surface of the alleyway beneath, resulting in the death of Mr. Herman and bodily injury to the plaintiff.

The paramount question projected for solution by the present appeal pertains to whether in the existing state of the evidence voluntarily and purposefully introduced by the plaintiff, and in view of the theory and hypothesis of liability upon which the case was presented, the plaintiff can now avail himself of the rule of Res ipsa loquitur.

In limine, we cogitate the significance of the following colloquy between the court and counsel for the plaintiff at the trial:

'The Court: Do you maintain that the theory of res ipsa loquitur is controlling?

'Mr. Laird: I say I could have utilized it. I have not proceeded on res ipsa loquitur. I have produced to this Court direct evidence. Res ipsa loquitur is where there is no direct evidence available and the plaintiff is therefore handicapped and the defendant is the only one that knows.

'The Court: I understand. I just wanted to make sure that I understood you as to just what you were relying on.'

The plaintiff furnished the explanatory evidence that the 'platform over a period of years became badly corroded, especially at the points where it entered * * * the wall--and that corrosion so deteriorated the metal that it just took away its suction so that when a load was applied to it it broke. It wasn't strong enough to carry it.' 'The weather would do it, for one thing.'

It was amid the introduction of evidence to disclose the corroded condition of the bars which entered the side of the building and the points at which the fractures actually occurred that counsel for the defendant remarked, 'If the Court please, I am perfectly willing to accept the answer that it (the examination of the bars) corroborated the fact that it deteriorated and broke. I will concede that because there is no question in my mind that that is what happened.'

The subject of Res ipsa loquitur has been somewhat elaborately discussed in the recent cases of Kramer v. R. M. Hollings-head Corp., 5 N.J. 386, 75 A.2d 861 (1950), and Alston v. J. L. Prescott Co., 10 N.J.Super. 116, 76 A.2d 686 (App.Div.1950), in which the authoritative sources of information relating to the so-called doctrine are indicated.

The pragmatical rudiment of the legal presumption or inference of Res ipsa loquitur is the circumstance that the causative facts of the anomalous accident are solely within the knowledge of the defendant and are not known to the plaintiff. The plaintiff is not under a primary obligation to exhaust all available means such as interrogatories, depositions or pretrial hearings to elicit the specific acts or omissions of the defendant, and his failure to do so does not eliminate the application of the Res ipsa loquitur rule. Menth v. Breeze Corporation, Inc., 4 N.J. 428, 437, 73 A.2d 183 (1950).

However, where the plaintiff proceeds (whether pleaded or not) definitely and specifically to prove all of the facts and circumstances which proximately caused the occurrence of the accident, there are no accommodations for the application of the rule of Res ipsa loquitur. Dentz v. Pennsylvania Railroad Co., 75 N.J.L. 893, 70 A. 164 (E. & A.1908); Hochreutener v. Pfenninger, 113 N.J.L. 317, 174 A. 513 (E. & A.1934); Cleary v. City of Camden, 118 N.J.L. 215, 192 A. 29 (Sup.Ct.1937), affirmed 119 N.J.L. 387, 196 A. 455 (E. & A.1938); Sibley v. City Service Transit Co., 1 N.J.Super. 199, 63 A.2d 708 (App.Div.1949), affirmed 2 N.J. 458, 66 A.2d 864 (1949).

Res ipsa loquitur where applicable imports that the plaintiff has made out a case from which the jury may infer negligence Without any direct proof of actionable negligence. Bien v. Unger, 64 N.J.L. 596, 46 A. 593 (E. & A.1900); Moran v. Moore-McCormack Lines, 131 N.J.L. 332, 36 A.2d 415 (Sup.Ct.1944), affirmed 132 N.J.L. 171, 39 A.2d 136 (E. & A.1944); Den Braven v. Meyer Brothers, 1 N.J. 470, 474, 64 A.2d 219 (1949); Marzotto v. Gay Garment Co., 11 N.J.Super. 368, 78 A.2d 394 (App.Div.1951), affirmed 7 N.J. 116, 80 A.2d 554 (1951).

We need not express an opinion concerning the Prima facie sufficiency of the evidence of negligence if the plaintiff had rested merely upon proof of the decedent's control over the platform of the fire escape and its collapse upon its use by the plaintiff at the invitation of the decedent. See, Smith v. Jackson, 70 N.J.L. 183, 56 A. 118 (Sup.Ct.1903); Sefler v. Vanderbeek & Sons, 88 N.J.L. 636, 96 A. 1009 (E. & A.1916); Tomkins v. Burlington Island, &c., Co., Tompkins v. Burlington Island, &c., Co.,

The rejection of the rule of Res ipsa loquitur does not mean that the plaintiff was precluded from showing the negligence of the defendants' decedent by circumstantial or direct evidence of conditions and acts or omissions from which his liability might have been logically inferred. Menth v. Breeze Corporation, Inc., supra.

And so, in the case Sub judice the issue produced by the evidence was whether in the established and acknowledged circumstances and in recognition of all the inferences favorable to the plaintiff that could logically and legitimately be drawn therefrom, the negligence of the defendants' decedent was tentatively sustained by Prima facie proof.

We shall assume that the plaintiff occupied the legal status of an invitee. Vide, Painter v. Hudson Trust Co., 126 A. 636, 2 N.J.Misc.R. 1137, 1139 (Sup.Ct.1924). We shall also respect the stipulation of counsel that the defendants' decedent was a mortgagee in possession of the premises and in control of them on the date of the occurrence of the mishap.

It is an elementary principle...