Gavin v. O'Connor

• Decision Date: 19 November 1923
• Docket Number: No. 43.,43.
• Citation: 122 A. 842
• Parties: GAVIN v. O'CONNOR.
• Court: New Jersey Supreme Court

122 A. 842

GAVIN

v. O'CONNOR.

No. 43.

Court of Errors and Appeals of New Jersey.

Nov. 19, 1923.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by James Gavin, administrator of the estate of John Gavin, deceased, against Thomas O'Connor. From a judgment of the Supreme Court reversing a judgment of nonsuit in the circuit court, defendant appeals. Judgment of Supreme Court reversed, and that of circuit court affirmed.

Eugene T. Sharkey, of Bayonne, for appellant.

Alfred Brenner, of Bayonne, for respondent.

PARKER, J. Plaintiffs intestate, a boy between seven and eight years old, was fatally Injured in the back yard attached to a two-family house belonging to the defendant, by the fall of a clothes pole erected and maintained by defendant to support clothes lines extended from the house. Plaintiff and his family were tenants of the ground floor, and the intestate was his son, who, with several other boys, was playing in the back yard at the time. There was evidence to indicate that the pole was decayed near the ground and had been patched by nailing a wooden cleat to it, but it had stood up until that time under the strain of such washed clothes as were hung on the lines, and this was the sole purpose for which it was intended. At the time of the accident, there were no clothes hung out, but a line extended from plaintiff's back window to the pole, and at least one of the boys was swaying on this line, holding the rope with his hands and trying to touch the ground with his knees; and it was at this precise juncture that the pole fell.

The trial court directed a nonsuit on the ground, in substance, that there was "no proof that the pole fell as the result of anything except the strain put on it by the boys in an act which was entirely unanticipated by the landlord." On appeal to the Supreme Court, the judgment of nonsuit was reversed; that court holding in a per curiam that the case was within the rule of Siggins v. McGill, 72 N. J. Law, 263, 62 Atl. 411, 3 L. R. A. (N. S.) 316, 111 Am. St. Rep. 666, and later cases of the same tenor.

The line of cases adverted to deals with the implied invitation by a landlord to use passages, stairways, etc., Intended and maintained by him for the common use of tenants and others visiting them, and the consequent duty of using reasonable care to keep such parts of the premises reasonably safe. It is at least doubtful whether the doctrine is applicable at all in the present case, because it does not seem to follow necessarily from the letting of one floor to a tenant that that tenant's children and their playmates are thereby invited to use the back yard as a playground, and we discover nothing in the evidence to indicate such an invitation. In Burnett v. Realty Co., 90 N. J. Law, 660, 102 Atl. 831, a case very similar on the facts of tenancy, a question called important was whether invitation to use the back yard was inferable, and evidence of an express agreement that the children might play in the yard was relied on.

But passing this question, which apparently was not raised on the trial, and conceding for present purposes that the boys were invited to play in the yard, the case is bare of any evidence tending to show that they were invited to use the pole in their play; and this phase of the case seems to have been overlooked by the Supreme Court.

The rule is thoroughly established in this state that the liability of the owner or occupier of premises who expressly or impliedly invites others to enter thereon is only coextensive with his invitation; his duty of care is limited by that, and when the limits of the invitation are exceeded, it ceases, except as to acts willfully injurious. The cases of Phillips v. Library Co., 55 N. J. Law, 307, 27 Atl. 478, and Ryerson v. Bathgate, 67 N. J. Law, 337, 51 Atl. 708, 57 L. R. A. 307, are enough to illustrate the principle. To these might be added Furey v. N. Y. Central R. R, Co., 67 N. J. Law, 270, 51 Atl. 505. In the Phillips Case, plaintiff used a path not regularly laid out, and saved a nonsuit only because the path she did use was a beaten track, justifying an inference by the jury that it was held out as proper for her to use....