Giuliana v. Ginnelly, A--599
| Decision Date | 22 December 1949 |
| Docket Number | No. A--599,A--599 |
| Citation | 6 N.J.Super. 76,69 A.2d 888 |
| Parties | GIULIANA v. GINNELLY. |
| Court | New Jersey Superior Court — Appellate Division |
David Cohn, Paterson, attorney for and of counsel with plaintiff-appellant, argued the cause.
Abraham I. Harkavy, Newark, argued the cause for the defendant-respondent (Harkavy & Lieb, Newark, attorneys).
Before Judges McGEEHAN, COLIE and EASTWOOD.
The opinion of the court was delivered by
EASTWOOD, J.A.D.
Plaintiff, Teresa Giuliana, appeals from a judgment of dismissal by the Superior Court, Law Division, of her action for damages against defendant, resulting from injuries suffered when she fell in walking over a sidewalk fronting defendant's property.
Plaintiff alleged in her complaint that defendant 'carelessly, negligently, illegally, and improperly kept said sidewalk so that the same became defective, out of repair, decrepit, dangerous and broken', and further that said 'dangerous condition constituting same a nuisance both public and private.' At the end of the plaintiff's case the court granted the defendant's motion for a dismissal of her cause of action on the ground that the allegations in the complaint had not been sustained by plaintiff's proofs.
In urging a reversal of the judgment of dismissal, plaintiff advances only one ground of appeal, viz.: that the trial court erred 'in view of the testimony and legal inferences to be drawn therefrom.' Defendant contends that plaintiff failed to produce proof that the sidewalk on which she fell was in a defective condition at the time of the accident; that the defendant knew or should have known of the alleged defect in the sidewalk or that defendant had any reasonable opportunity to remedy the same; further, that plaintiff did not produce any proof to establish that the defendant either created or participated in alleged defective construction of the sidewalk, or made use of the sidewalk in a manner not contemplated when constructed.
Our review of the record convinces us that plaintiff failed to assume and discharge her legal duty to establish by the proofs a prima facie case against the defendant and at the end of her case, conceding all of the reasonable inferences and implications justifiably flowing therefrom, her proofs fell short of establishing liability against the defendant which would have justified the court in directing defendant to go forward with his case. See Halloway v. Goldenberg, 4 N.J.Super. 488, 67 A.2d 891 (App.Div.1949).
Plaintiff contends that the sidewalk was used by automobiles to gain entrance to adjoining garages, thereby causing the alleged...
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Coll v. Bernstein, A--223
...116, 178 A. 782 (E.&A.1935); Overman v. Trust Co. of New Jersey, 126 N.J.L. 86, 18 A.2d 615 (Sup.Ct.1941); Giuliana v. Ginnelly, 6 N.J.Super. 76, 69 A.2d 888 (App.Div.1949). The predominant question presented for consideration in the present appeal is whether the evidence introduced in beha......
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Wirth v. Peters
...was the proximate cause of the plaintiff's injuries. Davis v. Tallon, 91 N.J.L. 618, 103 A. 236 (E. & A.1918); Giuliana v. Ginnelly, 6 N.J.Super. 76, 69 A.2d 888 (App.Div. 1949). Here, according to the defendant's own testimony, the broken curb and sidewalk were not caused by the elements o......
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Johnson v. Board of Chosen Freeholders of Monmouth County
...together with all direct or indirect inferences which may be reasonably or logically drawn from such facts. Giuliana v. Ginnelly, 6 N.J.Super. 76, 69 A.2d 888 (App.Div.1949); Pirozzi v. Acme Holding Company of Paterson, 5 N.J. 178, 74 A.2d 297 The law is well settled in New Jersey that a mu......