Horton v. Smith

• Decision Date: 29 July 1942
• Docket Number: No. 27.,27.
• Citation: 27 A.2d 193,128 N.J.L. 488
• Parties: HORTON v. SMITH.
• Court: New Jersey Supreme Court

27 A.2d 193

128 N.J.L. 488

HORTON

v. SMITH.

No. 27.

Supreme Court of New Jersey.

July 29, 1942.

Syllabus by the Court.

The duty of the owner or occupier of lands, who by invitation, express or implied, induces persons to come upon the premises, does not as a general rule extend beyond exercising ordinary care to render those premises reasonably safe for purposes embraced in the invitation.

Appeal from Court of Common Pleas, Monmouth County.

Action by Agnes Horton against John Smith, trading as James Butler, to recover for injuries sustained by the plaintiff in fall at entrance of defendant's store. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment reversed for venire de novo.

May term, 1942, before BROGAN, C. J., and PARKER and PORTER, JJ.

William H. D. Cox, of Newark, for appellant.

Charles F. Dittmar, of Freehold, for respondent.

PER CURIAM.

The plaintiff, an actual or intending customer at defendant's provision store, tripped and fell at the entrance thereto, sustaining rather serious injury, and brought this suit, charging negligence by defendant in so arranging some of his wares at the entrance as to cause her fall. The jury found in her favor, and from the resulting judgment defendant appeals.

The grounds of appeal relate wholly to passages in the charge to which exception was taken, and principally to the instructions relative to the duty of care imposed on each party, and negligence, direct and contributory.

As to the primary negligence, the settled rule as stated by our court of last resort in Murphy v. Core Joint, etc., Co., 110 N.J.L. 83, 86, 164 A. 262, 263, is that "the owner or occupier of lands who by invitation, express or implied, induces persons to come upon the premises, is under a duty to exercise ordinary care to render the premises reasonably safe for the purposes embraced in the invitation." We italicize two words in the quotation as particularly apposite to the subject matter of the present appeal.

The trial judge in the course of his charge to the jury instructed them twice in the same paragraph that the duty of the defendant was "to use reasonable care to make those premises safe, so that a person coming into the store may not be injured." This was repeated in substance a few lines farther on. And in discussing the duty of the plaintiff to use reasonable care for her own safety, he added: "I do not mean that in any way relieves the defendant from keeping his premises in a reasonably safe...