Scheri v. De Paolo

• Citation: 172 A.2d 233,68 N.J.Super. 297
• Decision Date: 30 June 1961
• Docket Number: No. A--185,A--185
• Parties: John SCHERI, Individually and as the Parent and Natural Guardian of his infant daughter, Marie T. Scheri, Plaintiff-Respondent, v. Joseph and Justine DE PAOLO, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 297

68 N.J.Super. 297

172 A.2d 233

John SCHERI, Individually and as the Parent and Natural Guardian of his infant daughter, Marie T. Scheri, Plaintiff-Respondent, v. Joseph and Justine DE PAOLO, Defendants-Appellants.

No. A--185.

Superior Court of New Jersey

Appellate Division.

Argued June 19, 1961.

Decided June 30, 1961.

William J. O'Hagan, Allenhurst, for defendants-appellants (Stout & O'Hagan, Allenhurst, attorneys).

John C. Giordano, Jr., West End, for plaintiff-respondent (Giordano & Giordano, West End, attorneys).

Before Judges CONFORD, FREUND and KILKENNY.

The opinion of the court was delivered by

CONFORD, S.J.A.D.

Defendants appeal from a judgment for plaintiff entered on a jury verdict. The theory of the action was negligence of the defendant landowners in failing to warn the minor plaintiff, a social guest (who has since attained majority and now appears in these proceedings In propria persona), of a dangerous condition on their property, resulting in her injury when she came upon the premises unforewarned thereof.

Plaintiff's proofs as to liability, adduced solely through her own testimony and that of her mother, would have permitted the jury to find the following facts. Plaintiff drove to the home of defendants in East Orange, her mother a passenger in the car, on December 24, 1958, arriving there about 8:00 P.M. The prearranged purpose of the trip was to pick up the young son of defendants, a soldier on furlough, who was then 'going with' plaintiff's sister, and to drive him to plaintiff's home in Oceanport to stay over Christmas. Plaintiff parked the car across the street from the DePaolo home, 'just a ways up from the house,' about 'two feet, three feet.' The front of defendants' home was dark, being only dimly lighted by street lights. A stone path two to three feet wide ran from a sidewalk in front of the house a distance of about 55 feet to the front entrance of the dwelling. There were grass lawns on both sides of the center path. Plaintiff testified that there was a thin wire strung along the borders of the sidewalk and the path, hanging about two feet above the ground. The wire was 'right on the pathway,' 'it met with the sidewalk.' On redirect examination, she said the wire ran 'two inches' from the pathway. There was testimony by both defendants that there was no wire at all along the path, but only bordering the sidewalk on both sides of the path, strung about a foot or a foot and a half from the sidewalk, and fastened to iron posts placed in the lawn about a foot from the center pathway on either side. They had put this wire up some years before to keep young bicyclists off the lawn.

Plaintiff and her mother testified, in substance, that plaintiff sounded her horn on arrival; that Mrs. DePaolo came out to the porch and called to them to come into the house, but they said they would wait in the car as they were in a hurry. After a few minutes Mr. DePaolo came out and also invited them in, explaining that the son was getting dressed. They responded they would wait in the car a bit longer. Thereafter, as plaintiff testified:

'A. Well I got out of the car and I walked across the street on to the sidewalk, and as I walked up to the pathway that met with the sidewalk, my right leg came in contact with the wire that met on the sidewalk, the pathway, and I just toppled over.'

On cross-examination plaintiff testified:

'Q. Then you went across the street? A. Yes.

'2. And you were a little to the right of the path as you went to cross the street? A. Yes.

'Q. And you went across the street and were going to take a shortcut across the lawn of the house? A. No.

'Q. Did you walk on the path? A. Well, I fell right at the corner there.

'Q. Did you walk on the path, the sidewalk, when you got over on that side of the street? A. Yes.

'Q. Did you get on to the path leading up to the house? A. Yes.'

Plaintiff's mother testified 'she toppled where the walk and the path met.'

The defendant Joseph DePaolo testified that when plaintiff came into the house after the accident she said, 'I run and cut across, and I hit (sic)' (the witness spoke broken English). On cross-examination, he testified:

'Q. You testified on direct examination, as I recall, that she was running across the grass and that is when she fell. A. Yes.'

The allusion was undoubtedly intended by counsel, and understood by the witness, to paraphrase defendant's direct testimony concerning the admission by plaintiff to him mentioned above.

Defendants urge that the trial court's refusal to charge one of their requested instructions, coupled with the effect of a germane portion of the charge as given, to which exception was taken, constituted prejudicial error. The charge requested was as follows:

'5. I charge you that as a matter of law you must find that whatever invitation was extended by the defendants to the plaintiff did not include an invitation to walk upon or cross defendants' lawn. Cortright v. Trustees of Rutgers, 120 N.J.L. 246 (198 A. 837) (E. & A. 1938).'

The here material portion of the charge as given is that which refers to plaintiff's crossing the lawn. With its preliminary remarks, it reads as follows 'Now, in this case you had this testimony as to invitation. A person who is invited into a house is invited for certain purposes, but the invitation extends to certain portions of the premises, depending upon the nature of the invitation, the purpose of the visit, so that I say if you invite someone into your home and you only expect or anticipate or foresee that that person is going to use one room and there is a known danger out in the rear yard of your house, then there is no duty on the land owner or the property owner to warn the guest of a danger which lurks in the place where the guest is not invited to enter. In other words, from the facts you have got to determine in this case what part of the premises the plaintiff was to use for the purpose for which she went there, either as a social guest, an invitee, or a licensee. So that if you determine that she was a social guest, that is the degree of care, as I have just read it to you, that applies to her.

'Now, let's consider the care which a property owner owes to a trespasser. If from the facts in this case you find that at the time of this accident, whether it would be by invitation or by license or in her capacity as a social guest, If you determine that that did not give her the right to cross the lawn but that she was obliged from the testimony, as you have heard it, to use the sidewalk and the pathway leading in, and that by going, if she did go, across the lawn--and that is for you to say, where she went--but If she went across the lawn, then you may find and it is up to you to find whether or not she was a trespasser, and under the law a property owner, a land owner, does not owe the duty to a trespasser to use reasonable care. * * *' (Emphasis added.)

Defendants contend that the general rule is that an invitee or licensee afforded by a landowner a walk providing ingress and egress to and from the property, who attempts a short cut over a grass lawn and consequently falls over a wire strung to keep people off the lawn, may not recover from the owner by reason of his mere negligence in maintaining the wire, as the visitor thus departs ...