Repasky v. Novich
| Citation | 172 A. 374 |
| Decision Date | 04 May 1934 |
| Docket Number | No. 91.,91. |
| Parties | REPASKY v. NOVICH. |
| Court | New Jersey Supreme Court |
Appeal from Circuit Court, Essex County.
Action by Sophie Repasky against Barney Novich. From an adverse judgment, plaintiff appeals.
Reversed, with direction.
Jacob Fox, of Newark, for appellant.
Joseph Coult and John J. Francis, both of Newark, for respondent.
This appeal brings up for review a judgment in favor of the defendant-respondent (hereinafter called defendant) and against the plaintiff-appellant (hereinafter called plaintiff), based on a jury verdict directed by the learned trial judge below.
The propriety of that direction depends entirely on the determinative fact whether or not the plaintiff was on the defendant's premises at the time of the accident.
The trial judge decided, on what he conceived and held to be the undenied testimony of the plaintiff, that she was on the defendant's premises; that she was there by the mere passive acquiescence of the defendant, and therefore he was under no obligation to her except to abstain from acts which are willfully injurious; and that, since there were no proofs of any such acts on the part of the defendant, he (the judge) felt constrained and accordingly did grant the motion for a direction. Saunders v. Smith Realty Co., 84 N. J. Law, 276, 279, 86 A. 404.
Defendant owns premises 476 Bergen street, Newark, N. J. It consists of a three-story, six-family dwelling. Defendant occupied a second floor apartment thereof. At or near the end of said building is the kitchen of the apartment. The front of the building extends the full width of the property line. A short distance from the front of the premises the building becomes narrower, a sort of recess or cut-off in the building, and from the latter point there is an alleyway of brick or stone, three feet nine inches in width, and running the full length of the rest of the building.
The plaintiff was a tenant in the adjoining premises, 478 Bergen street. There also appears to be an alleyway between the defendant's property line and the full length of the building of the house in which the plaintiff lived. This alleyway adjoins the defendant's alleyway, and from the beginning point of the latter runs parallel thereto to the end of the building in which the plaintiff lived. It is two and one-half feet in width and is made of gravel. The building on 478 Bergen street is longer than the building on 478 Bergen street. Each property has a back yard.
On December 18, 1931, the plaintiff, while putting or dumping ashes or garbage in a can which was at a point near the rear or end of defendant's building, was struck by glass falling out of defendant's kitchen window.
Although the complaint was based on some misconceived notion of the plaintiff's rights on the premises as a licensee or invitee, nevertheless we are rather of the opinion that it was perhaps broad enough to embrace a cause of action on the theory that the plaintiff was where she had a right to be. The answer consisted of a denial of the plaintiff's allegations and a separate defense of contributory negligence. There was no defense interposed by the defendant that the plaintiff was a trespasser. At all events, there was no objection to, or challenge of, the pleadings. The trial was conducted on the specific issue; namely, Where was the plaintiff at the time of the accident? Was she on the defendant's property or was she on the property of the owner in whose house she resided?
The testimony is not as clear as it should be. Frequent references to an alleyway, walls, property, ground, etc., are made without definitely and clearly establishing which is meant.
At the conclusion of the case a motion was made, on behalf of the defendant, for a direction. The trial judge, in disposing of the motion, first said: "I am going to leave it to the jury to determine as a matter of fact where the plaintiff was at the time she received these injuries when this glass fell. * * *" Later and finally he told counsel for the respective parties that he had given further consideration to the motion to direct a verdict, and asked counsel to direct his attention "to any testimony that would place the plaintiff either at the line of properties of the house where the plaintiff was a tenant and the property of the defendant or outside of that property line or more than three feet from the property line of the defendant." This counsel apparently failed to do. Whereupon the judge quoted the testimony developed on the cross-examination of the plaintiff, which was as follows:
And he added: "Now that (testimony aforesaid) is not denied," and granted the motion.
Did the trial judge rule rightly? We think not.
Before we consider the merits of the case, it may not be out of place to restate certain well-settled principles of law by which such consideration is to be governed:
That in passing upon a motion to nonsuit and for the direction of a verdict the evidence will not be weighed. All the evidence which supports the claim of the party against whom the motion is made must be accepted as true, and he is entitled to the benefit of all legitimate inferences which may be drawn therefrom. Where fair-minded men might honestly differ as to the conclusion to be drawn from facts, whether controverted or uncontroverted, the question at issue should be submitted to the jury. Lipschitz v. New York & N. J. Produce Corp., 111 N. J. Law, 392, 168 A. 390.
That in passing for a direction all of the testimony must be considered. The mere fact that a portion of the testimony seems to sustain the contention of the moving party is not sufficient if there is other evidence to the contrary.
In the case of Hayward v. North Jersey St. R. Co., 74 N. J. Law, 678, at page 681, 65 A. 737, 738, 8 L. R. A. (N. S.) 1062, this court held:
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