Higgins v. Goerke-Krich Co.

• Decision Date: 21 February 1918
• Parties: HIGGINS et al. v. GOERKE-KRICH CO.
• Court: New Jersey Supreme Court

103 A. 37

91 N.J.Law 464

HIGGINS et al.

v. GOERKE-KRICH CO.

Supreme Court of New Jersey.

Feb. 21, 1918.

Appeal from District Court of Elizabeth.

Action by Anna V. Higgins and others against the Goerke-Krich Company. Judgment for defendant, and plaintiffs appeal. Reversed and trial de novo ordered.

Argued November term, 1917, before SWAYZE, TRENCHARD, and MINTURN, JJ.

John J. Stamler, of Elizabeth, for plaintiffs. William E. Holmwood, of Newark, for defendant.

MINTURN, J. While visiting the defendant's department store in Elizabeth, for the purpose of purchasing an ice box, the plaintiff was shown by one of the salesladies to where a number of ice boxes were standing open for inspection. The plaintiff, while examining one of the boxes, placed her hand on its upper edge for the purpose of enabling her to inspect its lower compartment, and while bending down for that purpose the lid of the box dropped upon her hand, injuring her fingers, the damage to which is sought to be compensated by a recovery in this suit. Immediately after the falling of the lid the saleslady exclaimed that the same thing happened that morning.

An expert furniture salesman, who had charge of an ice box department for eight years in a store, testified that it was the custom in the business to keep the lids of the boxes closed, when they are displayed for sale.

The testimony on behalf of the defendant presented no substantial variation from that offered for the plaintiff, except to show that the lid was held back by a chain, at an angle of 45 degrees, to prevent it falling backward. The inference remained that there was no resistance presented by chain or otherwise to prevent the lid falling forward, as it did on this occasion. Upon this state of facts the learned trial court ordered judgment for the defendant, from which direction this appeal was taken.

Since there is in the record no dispute upon the material facts, the case does not come within the rule that this court will not upon appeal review the facts, where the only contention is the rule of law applicable to the conceded facts.

An initial objection is made to the introduction in evidence of the declaration made by the saleslady, at the time of the accident, that a similar occurrence happened that morning. The rule is elementary in this department of the law that to be admissible such testimony must synchronize with the main occurrence, so as to be incidental to, or practically part of it, as res gest? Greenleaf, Evidence, § 108.

Blackman v. West Jersey, etc., R. R. Co., 68 N. J. Law, 1, 52 Atl. 370, is an instance where such an admission or declaration was rejected. The res gest?in that case was the fall of the plaintiff from a street car. The admission of the conductor while picking her up that the fault was his in failing to observe her signal to stop was held not to be within the rule of res gestae.

In Jennings v. Okin, 88 N. J. Law, 659, 97 Atl. 249, the Court of Errors reversed the judgment of the trial court upon the ground that the testimony of defendant's agent relative to his destination while driving a motorcar for his principal was properly part of the res gestae in ascertaining whether the proposed trip was undertaken upon his own or his principal's business.

The case sub judice seems to fall within a zone of time not paralleled by these two cases. The infirmity of the testimony rests in the fact that it was in no wise related to the fact of the accident, but was essentially an admission of a past occurrence of similar character. It is clearly settled by the rules of evidence that such declarations are not admissible.

Prof. Greenleaf remarks:

"It is to be observed that where declarations are merely narrative of a past occurrence they cannot be received as proof of the existence of such occurrence. They must be concomitant with the principal act" I Greenleaf, 126 and cases cited. 10 R C. L. 979, and cases.

But it is to be observed that with that declaration excluded there was still testimony in the case upon which negligence could be predicated.

The plaintiff's expert (Kutoff) testified to a custom of the trade of keeping the lids upon such boxes closed, which practice if followed in this instance would have made the accident impossible. There was in addition the conspicuous fact that the plaintiff was an invitee, which fact cast upon the defendant the duty of using reasonable care for her safety, regardless of any additional care made necessary by the doctrine of scienter, resulting from previous express or implied knowledge of an existing defect as in Bamberger v. Schnatterer, 81 N. J. Law, 558, 79 Atl. 324, 34 L. R. A. (N. S.) 1077, Ann. Cas. 1912D, 139. The test of negligence in such a situation is whether under the circumstances the defendant used reasonable foresight to prevent harm or damage to the defendant lawfully upon its premises. Kingsley v. D., L. & W. R. R., 81 N. J. Law, 541, 80 Atl. 327, 35 L. R. A. (N. S.) 338.

In Munroe v. P. R. R., 85 N. J. Law, 691, 90 Atl. 254, Ann. Cas. 1916A, 140, the Court of Errors held that it was not ipso facto negligence for a person lawfully upon a railroad platform awaiting the arrival of a train to walk within three feet of the edge of the platform whereby he was injured, unless the danger incident to the act was inherently...