Mead v. Baum

• Decision Date: 08 June 1908
• Parties: MEAD et al. v. BAUM.
• Court: New Jersey Supreme Court

69 A. 962

76 N.J.L. 337

MEAD et al.

v. BAUM.

Supreme Court of New Jersey.

June 8, 1908.

(Syllabus by the Court.)

Action by Mary D. Mead and husband against Henry Baum. Verdict for plaintiffs, and defendant moves for a rule to show cause why a new trial should not be granted. Verdict for husband set aside. Rule as to wife discharged.

Argued February term, 1908, before REED, PARKER, and VOORHEES, JJ.

Wood McKee and Michael Dunn, for the rule. George S. Hilton and William L. McCue, opposed.

REED, J. This action was brought by Mary D. Mead and her husband to recover damages for an injury to Mrs. Mead occurring upon the premises of the defendant on July 4, 1905. The lady had gone to Lincoln Park with her father to witness an exhibition of fireworks. Lincoln Park is owned by the defendant, and is used as a pleasure resort. On this 4th of July the grounds and buildings had been rented for a picnic to the Letter Carriers' Association. Within the park is a restaurant and dance pavilion. The dimensions of the latter are 59 by 101 feet. There are double doors leading out from this building upon a platform. The opening of these doors is 9 1/3 feet wide. The platform or porch in front of the doors is reached by a step down of 8 1/2 inches. This platform is 5 feet 10 inches wide. The platform is about 6 feet above the ground, with 9 steps leading down to the ground. These steps, however, are not in front of the double doors, but are at the end of the porch. In front of the doors was a railing which ran from one end to the other of the porch, so that a crowd in going out of the double doors, instead of going directly forward to the steps leading down to the ground, would be confronted by the railing, and compelled to turn to the right and pass along the porch to the stair way. The plaintiff, with her father, entered the grounds of the park on this night, but did not enter the dance pavilion, and in walking approached this porch. There seems to have been a large number in the dance hall when the exhibition of fire works began. The fireworks attracted the attention of those within the building, and a large number passed out of the double doors on to the porch until the porch became crowded, and pressed against the railing or against others who stood by the railing. The railing gave way, and a number of persons fell off the plat form on the ground beneath, and some part of the platform or some falling persons struck the plaintiff, Mrs Mead, and caused the in jury for which this action is brought.

The negligence charged against the defendant is that he did not take reasonable care to provide a reasonably safe railing to protect those who were likely to visit the dance pavilion. Considering the crowds that were accustomed to attend the picnics and other functions at this park, and the use to which this porch or platform was likely to be put in affording egress to those within the pavilion, it was a duty imposed upon the defendant to take reasonable care to protect those likely to use the pavilion by making a reasonably safe barrier against the danger of falling from the porch, or of being injured by those falling therefrom. The danger of an accident like the one which occurred was enhanced by the fact, as already remarked, that the steps, instead of being directly in front of the doors, were some distance to the right of the doors, and a crowd going out of the doors, and turning to the right would be likely to be pressed against the railing. We think there was testimony from which the jury had the right to conclude that the railing was not reasonably safe. Two witnesses just before the accident, while leaning against the railing, discovered that it was unstable, and one of them says that the corner of the railing was away from the post so far that the witness could put his hand through the aperture. The carpenter who repaired the railing after the accident described the construction of the old railing as it appeared to him. It consisted of ceiling boards, with a pat or shoe, and the boards fitted into the shoe. He says he was unable to use the old top rail in making his reparation because it had so shrunk that it was too short for the purpose. He says the original rail had become so soft that it would not hold the nails; that the rail had been fastened to the post by eightpenny nails, and that the nails had become rusted away; that they were very light nails for work of that kind. He also says that, where there is a job where they expect a pressure against the railing, it is usual to mortice the railing to the post, if the post is large enough to admit of so doing. Mr. Weir, an architect, also says that the rail was too light for the place, and that it ought to have been morticed. This testimony regarding the condition of the rail, and respecting its adequacy for the purpose for which a...