Gentile v. National Newark & Essex Banking Co., A--516

• Decision Date: 28 November 1958
• Docket Number: No. A--516,A--516
• Citation: 53 N.J.Super. 35,146 A.2d 471
• Parties: Finis GENTILE and Joseph Gentile, Plaintiffs-Appellants, v. NATIONAL NEWARK & ESSEX BANKING COMPANY, Defendant-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 35

53 N.J.Super. 35

146 A.2d 471

Finis GENTILE and Joseph Gentile, Plaintiffs-Appellants, v. NATIONAL NEWARK & ESSEX BANKING COMPANY, Defendant-Respondent.

No. A--516.

Superior Court of New Jersey Appellate Division.

Argued Oct. 27, 1958.

Decided Nov. 28, 1958.

James N. Marinello, Newark, for plaintiffs-appellants (Marinello, Cundari & Soriano, Newark, attorneys).

Robert L. Clifford, Newark, for defendant-respondent (Mead, Gleeson, Hansen & Pantages, Newark, attorneys).

Before Judges SCHETTINO, HALL and GAULKIN.

The opinion of the court was delivered by

SCHETTINO, J.A.D.

Appeal is taken from a Superior Court, Law Division, judgment entered on a motion for involuntary dismissal. R.R. 4:42--2(b). Plaintiff-wife, hereinafter referred to as 'plaintiff,' seeks recovery for personal injuries as a result of a fall claimed to arise from defendant's alleged negligence in removing snow from the sidewalk in front of its business premises. Plaintiff-husband seeks recovery Per quod.

On a motion for judgment at the close of plaintiffs' case we accept as true all evidence which supports plaintiffs' case and give to plaintiffs the benefit of all legitimate inferences which may be drawn therefrom. Honey v. Brown, 22 N.J. 433, 438, 126 A.2d 354 (1956). We summarize the evidence in the light most favorable to plaintiffs.

On March 19, 1956 shortly after 1:00 p.m. plaintiff was injured by reason of a fall which occurred in front of defendant's bank located at the northeasterly corner of Bloomfield Avenue and Broad Street in Bloomfield. It had snowed heavily for two days and was snowing lightly when plaintiff left her home for work that morning, but the snow had stopped falling around noon. Plaintiff alighted from a north-bound Bloomfield Avenue bus at the southerly corner of Washington Street and walked northerly on Bloomfield Avenue, crossed Washington Street and Broad Street on the regular crosswalks without any difficulty, and proceeded towards the defendant's bank to make a deposit.

To compel pedestrians to use the crosswalk, poles and chains were maintained on the sidewalk at the curb-line at the Broad Street corner in front of defendant's premises, with an opening which marked the entrance from the crosswalk to the sidewalk. This was the only way one could approach defendant's bank from the direction plaintiff was walking. On the sidewalk in front of defendant's premises, extending completely across the opening and the curb, was a mound of snow about two feet high. The sidewalk extended approximately 20 feet from the bank entrance to the gutter. This sidewalk had been cleared for about seven feet from the building and the snow therefrom piled on the outer part of the walk. The snow mound blocking the crosswalk sloped downward from the general location of the curb to the seven foot area of the sidewalk which had been cleared. The snow on each side of the opening was considerably higher than the two-feet mound within it.

When the plaintiff arrived at the cross-walk opening, 'I got up onto the mound of snow and started down. I had taken maybe five or six steps, and my right foot went through the snow' up to the knee 'to what apparently was ice. I felt my foot go through to the ice underneath the snow. There was a dislocation of the ankle, and I heard the bones smash, and I slid down.' After the fall, plaintiff was lying on her back with her head towards the gutter and her feet towards defendant's building.

The only evidence as to defendant's connection with the snow removal and the mound in the opening was to be found in the following answers to plaintiff's interrogatories which plaintiff read into the record:

'9. State whether or not the defendant caused the snow and ice which accumulated on the public sidewalk adjacent to premises known as 2 Broad Street, Bloomfield, New Jersey, to be removed on March 19, 1956.

'Answer: Agents of the defendant corporation shoveled the public sidewalk adjacent to the premises known as 2 Broad Street, Newark, (sic) New Jersey on March 19, 1956. Because of the quantity of snow that fell, snow was piled on the outer part of the walk away from the bank building, and paths were cut at the crosswalks.

'14. If the snow and ice which accumulated on premises known as 2 Broad Street, Bloomfield, New Jersey, was removed by the agents or employees of the defendant on March 19, 1956, state in detail the number of occasions said snow and ice was removed and the exact time of which said snow and ice was removed on that date.

'Answer: The time or times that agents and employees of the defendant removed snow on March 19, 1956 are presently unknown, because of the death of Rudolph Lipps, the maintenance superintendent, since that date. William Brydon remembers shoveling three or four times during the day, however, and Joseph Merrick remembers shoveling once.

'15. State whether or not (defendant) by any supervisory employees or agents of the defendant directed the removal of the snow and ice from the public sidewalk adjacent to defendant's premises on March 19, 1956.

'Answer: Yes.'

At the close of plaintiffs' case defendant moved for judgment on the ground that there was no evidence it had placed the snow on the crosswalk and, even if it had, there was no evidence that in so doing it created a new element of danger or hazard. The trial judge said that the jury had the right to infer that defendant created the mound in the crosswalk. However, he granted defendant's motion on the ground that there was no evidence that the mound introduced an...