Lynch v. McDermott, 410.

• Decision Date: 19 September 1933
• Docket Number: No. 410.,410.
• Citation: 168 A. 192
• Parties: LYNCH v. McDERMOTT.
• Court: New Jersey Supreme Court

168 A. 192

LYNCH

v. McDERMOTT.

No. 410.

Supreme Court of New Jersey.

Sept. 19, 1933.

Syllabus by the Court.

1. It is the duty of an owner inviting a person to her premises to use reasonable care to keep the premises reasonably safe. The premises may be unsafe and even reasonably so without any default on the part of the owner.

2. Whether the owner of a private dwelling had discharged her duty toward the plaintiff, an express invitee, who had sustained injuries as a result of the defendant's failure to remove snow and ice from her preniisss from the early hours of the morning until 7 :30 p. m., of the day of the accident, during which time it neither rained nor snowed, and the question of contributory negligence, if raised, are jury questions.

3. Where it appears that the trial judge, sitting without a jury, failed to make a determination of the facts whether the defendant discharged her duty in the premises, or whether plaintiff was guilty of contributory negligence, the judge's certification of finding, as a matter of law, that the owner was under no duty toward the plaintiff, an express invitee, to remove the snow or ice from the premises, is erroneous.

Appeal from District Court of Bayonne.

Action by John A. Lynch against Nellie Ellen McDermott. Judgment for defendant, and plaintiff appeals.

Reversed.

Argued May term, 1933, before PARKER, LLOYD, and PERSKIE, JJ.

David Schneiderman, of Bayonne (Irving Charles Picker, of Bayonne, of counsel), for appellant.

Reginald V. Spell, of New York City, for appellee.

PERSKIE, Justice.

The facts are stipulated. The plaintiff, on November 27, 1931, at 7:30 p. m., while dark, as an express invitee of the defendant, while leaving her home at 135 West TwentyEifth street, Bayonne, N. J., slipped on a coating of ice which had formed on the front steps of the defendant's home. It appears that on the day before the accident, November 26, 1931, snow and rain had fallen. It continued to snow and rain until the early hours of November 27, 1931. Defendant knew that ice had formed on the front steps of her home. It did not snow or rain from the early hours of November 27, 1931, until the time of the accident, 7 :30 p. m. of said day. Defendant did nothing to remedy this condition until after the happening of the said accident, for, as she says, she was waiting for her son-in-law to come home. When the plaintiff entered the house he did so by the side entrance. When he was about to leave, defendant requested him to leave by the front door entrance. He did so. The court below in his certification of findings states that the judgment was entered in favor of the defendant and against the plaintiff, for the following reason: "The defendant was under no duty to the plaintiff to remove the snow or ice from the steps of her premises." This ruling is before us. We hold that it was erroneous. The facts in the instant case are strikingly similar to the facts in the case of Cooper v. Reinhardt, 91 N. J. Law, 402, 103 A. 24, 25, in the latter case the facts were as follows: The plaintiff entered tie defendant's premises about 3:30 p. m. The entrance was by means of six steps and a platform leading to the barroom door. It had been snowing, and snow and slush were on the steps and platform. About that time it stopped snowing and grew colder. The defendant knew that the platform and steps needed cleaning and had caused them to be cleaned about 3:00 p. m., before the plaintiff entered. Nothing further was done in the way of cleaning or caring for them until 5:45 p. m., when the hotel porter again began to clean them. The defendant himself described what then occurred. He said: "I saw he was cleaning...