Scheirek v. Izsa
| Decision Date | 29 May 1953 |
| Docket Number | No. A--265,A--265 |
| Citation | 26 N.J.Super. 68,97 A.2d 167 |
| Parties | SCHEIREK v. IZSA. |
| Court | New Jersey Superior Court — Appellate Division |
J. Mortimer Rubenstein, Paterson, argued the cause for appellant (Rubenstein & Kosoff, Paterson, attorneys).
Louis Santorf, Paterson, argued the cause for respondent (J. Chester Massinger, Paterson, attorney).
Before Judges EASTWOOD, BIGELOW, and JAYNE.
The opinion of the Court was delivered by
JAYNE, J.A.D.
The plaintiff, an elderly man of 73 years of age, had for a period of 14 years occupied as a tenant a modest apartment on the second floor of No. 73 Dayton Avenue, Passaic, New Jersey. There was only one stairway available for the common use of the tenants of the apartments situate on the second floor. The stairs had been constructed of wood, and throughout at least a score of years the surface of the treads and their projecting edges had been subjected to the progressive degenerations of constant use.
At about 2:30 o'clock in the afternoon of December 8, 1951 the plaintiff while endeavoring to ascend the stairway placed his right foot on the second step from the bottom of the stairs; his foot slipped, it is said, off the nose of the tread, causing him to fall and sustain a fracture of the patella of his right knee, a bodily injury for which he sought compensatory damages in this action.
It was acknowledged at the pretrial conference that the plaintiff was a tenant of the premises, that the stairway was intended for the use in common of the tenants, and that its maintenance and control were retained by the defendant as one of the landlords.
At the conclusion of the introduction of the testimony on behalf of the plaintiff, a motion for a judgment of involuntary dismissal of the action was granted. The propriety of that judgment is the subject of the present appeal. Our review necessitates a comprehensive examination of the evidence embodied in the record in the light of the applicable principles of law, many of which are concisely stated in our opinion in Gentile v. Public Service Coordinated Transport, 12 N.J.Super. 45, 78 A.2d 915 (App.Div.1951).
Certain it is that in the consideration of such a motion for an involuntary dismissal the court must accept as true all evidence which supports the view of the party against whom the motion is made and must give him the benefit of all inferences which may logically and legitimately be drawn therefrom in his favor. Such continues to be the guiding rule. Scarano v. Lindale, 121 N.J.L. 549, 3 A.2d 633 (E. & A.1939); McKinney v. Public Service Interstate Transp. Co., 4 N.J. 229, 243, 72 A.2d 326 (1950); Mellon v. Pennsylvania-Reading Seashore Lines, 7 N.J. 415, 81 A.2d 747 (1951).
Fundamentally we think of the defendant's legal obligation. It was his duty in the acknowledged circumstances to exercise reasonable care to have the stairway reasonably suitable and safe for its intended use. Daniels v. Brunton, 7 N.J. 102, 80 A.2d 547 (1951).
There was evidence in the present case that the treads of the steps of the stairway had progressively and conspicuously deteriorated from constant wear during the several years preceding the occurrence of the mishap. The witnesses described them as 'thin,' 'worn,' and 'slippery.' The edges of the treads had become 'thin,' 'sharp,' and 'slippery.' Counsel for the plaintiff represents to us that the witnesses by their descriptive adjectives and their demonstrative indications sought to disclose that through wear the treads slanted downward in their forward projection to a thin and slippery edge. We think that the testimony implies that import. Whether the worn and deteriorated condition of the tread of the second step was such as to imperil or jeopardize the safety of a lawful user of the stairway and whether its degenerated condition was the proximate cause of the plaintiff's fall and consequent injury were, we think, factual matters appropriately to be determined by the jury in resolving the alleged negligence of the defendant. There was adequate proof of the knowledge of the defendant and of his agent of the condition of the stairs during a period of about five years prior to the accident.
It is our conviction that the alleged dereliction of the defendant in failing to exercise reasonable care to maintain the common stairway under his control in a reasonably suitable and safe condition was in view of the evidence relating to that element of the cause of action a subject for the determination of the jury.
Seemingly the trial judge was of a like persuasion for in granting the requested dismissal he stated, 'twelve reasonable men could come to no other conclusion but that he (the plaintiff) assumed the risk in using the stairway at the time of the accident.'
To justify a dismissal upon such a motion on the ground of the contributory negligence of the plaintiff or of his voluntary assumption of the known risk, the contributory negligence or the requisite elements of the assumption of the risk must clearly appear conclusively as a fact or by necessary exclusive inference from the proof. Spence v. Maier, 137 N.J.L. 284, 59 A.2d 609 (Sup.Ct.1948), affirmed, 1 N.J. 36, 61 A.2d 590 (1948); Bacak v. Hogya, 4 N.J. 417, 73 A.2d 167 (1950).
And so, the existence either of contributory negligence or of its twin, assumption of risk, is customarily a preeminent question of fact for the jury. Hickman v. Dutch Treat Restaurant, Inc., 3 N.J. 460, 464, 70 A.2d 764 (1950); Albanese v. Central R.R. Co., 70 N.J.L. 241, 57 A. 447 (E. & A. 1904); Toohey v. Webster, 97 N.J.L. 545, 117 A. 838, 23 A.L.R. 440 (E. & A. 1922); Picariello v. Linares & Rescigno Bank, 127 N.J.L. 63, 21 A.2d 343 (Sup.Ct.1941), affirmed, Id., 127 N.J.L. 565, 23 A.2d 396 (E. & A. 1941).
Trial judges must be ever mindful that the hypothetical reasonably prudent and cautious man is the one envisioned by the jury. Here the court concluded that there were no...
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