Gaffney v. America on Wheels

• Decision Date: 23 November 1951
• Docket Number: No. A--375,A--375
• Citation: 16 N.J.Super. 484,85 A.2d 1
• Parties: GAFFNEY v. AMERICA ON WHEELS.
• Court: New Jersey Superior Court — Appellate Division

Page 484

16 N.J.Super. 484

85 A.2d 1

GAFFNEY v. AMERICA ON WHEELS.

No. A--375.

Superior Court of New Jersey Appellate Division.

Argued Nov. 13, 1951.

Decided Nov. 23, 1951.

Hyman W. Rosenthal, Newark, argued the cause for appellant (Marcus & Levy, Paterson, attorneys; Harry Chashin, Bayonne, and Max D. Forrest, Paterson, of counsel).

Sam Weiss, Perth Amboy, argued the cause for respondent (Lewis S. Jacobson, Perth Amboy, attorney).

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

The opinion of the court was delivered by

JAYNE, J.A.D.

The mishap in which the plaintiff sustained a bodily injury for which he sought the recovery of compensatory damages occurred on the evening of April 6, 1950, at the roller skating rink conducted by the defendant on Nineteenth Avenue in the City of Paterson.

At the conclusion of the introduction of the evidence by both plaintiff and defendant, the trial judge, on motion, directed the entry of judgment in favor of the defendant. The propreity of his judicial action in that particular constitutes the subject matter of the present appeal.

Ordinarily proof of the mere occurrence of an injurious mishap is not legally productive of an inference of negligence. Normally the presumption is to the contrary. Negligence is not an imaginative notion; it denotes elements of factuality. McCombe v. Public Service Railway Co., 95 N.J.L. 187, 112 A. 255 (E.&A.1920); Oelschlaeger v. Hahne & Co., 2 N.J. 490, 66 A.2d 861 (1949); Callahan v. National Lead Co., 4 N.J. 150, 72 A.2d 187 (1950); Layton v. Healy, 12 N.J.Super. 459, 79 A.2d 894 (App.Div. 1951).

Elementary also is the principle that the duty to prove negligence rests on the shoulders of the party who alleges it, and so it has been stated with conspicuous frequency that where the evidence is equally consistent with the absence of negligence as with the existence of negligence on the part of the defendant, the plaintiff cannot prevail. Alvino v. Public Service Railway Co., 97 N.J.L. 526, 117 A. 709 (E.&A.1922); Vollkommer v. Menge, 116 N.J.L. 82, 182 A. 347 (Sup.Ct.1935); Callahan v. National Lead Co., supra.

Whenever we are confined to the consideration of purely circumstantial evidence, the contrast between the absence or existence of negligence often becomes exceedingly subtle where the mishap is of a variety known occasionally to occur to one in the absence of any negligence on the part of another. Such situations are not uncommonly observed when the injured person has chosen to engage in some sport or pursue some type of amusement or entertainment to which certain known risks are normally incident. Vide, Gardner v. G. Howard Mitchell, Inc., 107 N.J.L. 311, 153 A. 607 (E.&A.1931); Young v. Ross, 127 N.J.L. 211, 21 A.2d 762 (E.&A.1941). Does not the pleasure of skating inhere in one's physical ability gracefully to defy the law of gravitation? Gravity so challenged oftentimes triumphs, even over the most skillful performers and amid the most unobjectionable accommodations; hence the apparent need for the maintenance of the first-aid room at skating rinks.

There is no doubt that one who conducts a skating rink is not an insurer of the safety of the patrons. It is equally indubitable that one who engages in such a business is under the duty to exercise ordinary care to render and maintain the premises which are devoted to that use reasonably safe and suitable for such intended purpose.

The circumstances of the present case in their factual setting are significantly and distinctly dissimilar to those presented in Griffin v. De Geeter, 132 N.J.L. 381, 40 A.2d 579 (E.&A.1945); Clayton v. New Dreamland Roller Skating Rink, Inc., 14 N.J.Super. 390, 82 A.2d 458 (App.Div.1951).

In the appendix we perceive the endeavors of counsel for the plaintiff to establish, if possible, to a Prima facie degree the liability of the defendant for the plaintiff's misadventure either upon the basis that the surface of the skating area was structurally faulty or that the defendant was guilty of a culpable dereliction in the supervision and maintenance of it. The contention on behalf of the plaintiff is expressed in the pretrial order as follows: 'The defendant operates a skating rink or arena and the plaintiff slipped, stumbled and fell to the floor by reason of the slippery floor, which was dangerous, causing him to fall to the floor whereby he sustained personal injuries.'

We have examined the transcription of the testimony to determine whether fairminded men might have honestly differed as to the conclusions to be drawn from the facts disclosed by the testimony and whether negligence on the part of the defendant might reasonably have been inferred therefrom. Gentile v. Public Service Coordinated Transport, 12 N.J.Super. 45, 78 A.2d 915 (App.Div.1951); Kaufman v. Pennsylvania R.R. Co., 2 N.J. 318, 66 A.2d 527 (1949).

The plaintiff while skating evidently fell, but none of the other witnesses at the trial saw him fall. The plaintiff graphically described his sensations: 'My skates slipped right from under me,' said he. 'Well, the only thing I could really tell you would be like, say, an automobile; you are driving an automobile on a dry road and you happen to hit a piece of ice under your wheels all of a sudden. That is the best way I can explain it.'

In the defendant's rink an area of approximately proximately 85 60 feet is made available for skating. The floor is of wood. At the expiration of each period of six months the floor was thoroughly cleansed and a plastic coating was applied. The efficient utility of the plastic covering is to supply a more adhesive friction of the rollers of...