Kappertz v. The Jerseyman

• Decision Date: 18 June 1923
• Docket Number: No. 53.,53.
• Citation: 121 A. 718
• Parties: KAPPERTZ v. THE JERSEYMAN.
• Court: New Jersey Supreme Court

121 A. 718

KAPPERTZ

v. THE JERSEYMAN.

No. 53.

Court of Errors and Appeals of New Jersey.

June 18, 1923.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Leo Kappertz against The Jerseyman, a corporation. Judgment for defendant, and plaintiff appeals. Reversed, and venire de novo.

Elmer W. Romine, of Morristown, for appellant.

Charles A. Rathbun, of Morristown, for respondent.

KATZENBACH, J. This is an appeal by the plaintiff below from a judgment of nonsuit entered in the Supreme Court after a trial held at the Morris circuit. The action was one to recover damages for personal injuries. The plaintiff, Leo Kappertz, was engaged in the business of welding and repairing machinery. His business was conducted at 95 Washington street, in the town of Morristown. The defendant was The Jerseyman, a corporation, publishing in Morristown a daily newspaper known as "The Jerseyman." The plant of The Jerseyman was located upon the same street as the plaintiff's place of business. During the months of May and June, 1921, there were frequent breakdowns in the machinery of the printing plant of The Jerseyman. The plaintiff was called upon by the manager from time to time to make repairs. In some instances parts of the presses would be taken by the plaintiff to his shop for repairs. On other occasions the plaintiff would repair the machinery at the plant of the defendant. On June 6, 1921, the plaintiff was called to the newspaper plant by the manager. There had been during the day frequent breakdowns of the presses and the pnjier was not operating properly through the presses. The plaintiff made some adjustments of the machinery of a press. He then found that the roll of paper being used was of poor quality and advised a new roll of paper be inserted in the press, in order to enable him to better test the machinery. Back of the presses was a trapdoor through which were hoisted from the basement the rolls of paper used in the presses. The trapdoor was also used for the purpose of disposing of the excess paper accumulating upon the floor of the pressroom. The plaintiff caused to be hoisted through the trapdoor a heavy roll of paper. He then closed the trapdoor. The roll of paper rested at first on the door and was then set in position in a press. The plaintiff stooped down with his back to the trapdoor, adjusted the roll, and was in the act of unwinding the paper in order that it might work evenly when he stepped backward and fell through the trapdoor, which had in the meantime been opened by an employee of the defendant who was throwing papers down the hatchway. The distance from the trapdoor to the basement below was approximately 12 feet. The injuries of the plaintiff were serious and permanent. Upon these facts the trial court nonsuited the plaintiff, holding that he was guilty of contributory negligence, as he knew the trapdoor was there, the purposes for which it was used, and was supposed to know that the door might be opened while he was in a stooping position with his back to it, although not knowing as a fact that the door was opened. This appeal brings before the court the propriety of this ruling.

The plaintiff was upon the premises of the defendant by its express invitation. He was not a trespasser or a mere licensee. The defendant owed the plaintiff a duty not only to exercise ordinary care to render the premises reasonably safe for the purposes for which he entered, but to abstain from any act which might make the plaintiff's use of the premises dangerous. This principle of law was first clearly stated by the late Chief Justice Depue in the case of Phillips v. Library Co., 55 N. J. Law, 307, 27 Atl. 478. It has been restated in this court, and the Supreme Court since then in numerous decisions, as for example Nolan v. Bridgeton & Millville Traction Co., 74 N. J. Law, 559, 65 Atl. 902; Sefler v. Vanderbeek & Sons, 88 N. J. Law, 636, 96 Atl. 1009; Higgins v. Goerke-Krich Co., 91 N. J. Law, 464, 103 Atl. 37; Cooper v. Reinhardt, 91 N. J. Law, 402, 103 Atl. 24; Carey v. Gray et al. (N. J. Err. & App.) 119 Atl. 176.

To justify the nonsuit it must be said that Kappertz as a matter of law was guilty of negligence in stepping backward on a place which a few minutes before he had made safe by closing the trapdoor and which in the meantime been made unsafe by a servant of the defendant opening the door without the knowledge of Kappertz. The act of the defendant's servant was a violation of the defendant's duty to abstain from any act which would make the use of the premises dangerous. Kappertz had in law the right to assume that as he was engaged in his work with his back to the trapdoor that the place in which he was working, which he had made safe, would not be made unsafe by the act of the defendant's servant in opening the trapdoor. For Kappertz to have acted as he did in stepping backward without looking was not, in our opinion, conclusive evidence that he was not at the time exercising reasonable care for his safety. As to whether he was acting with reasonable care or not was a question upon which the minds of fair-minded men might differ, and as was said by Mr. Justice Trenchard in the case of Nolan v. Bridgeton & Millville Traction Co., 74 N. J. Law, 559, 65 Atl. 992:

"Where fair-minded men might honestly differ as to the conclusions to be drawn from facts, whether controverted or uncontroverted, the question at issue should go to the jury."

In the case of McCormick v. Anistaki, 66 N. J. Law, 211, 49 Atl. 505, the plaintiff occupied rooms in an adjoining building to that occupied by the defendant and used a hallway in the rear of defendant's premises as a means of access to his rooms. In the hallway a hatchway was constructed which was opened at times and used for hoisting articles from the cellar. The plaintiff knew this, yet in going one day to his rooms he opened the outside door, entered the...