Spenzierato v. Our Lady Monte Virgine Soc. of Mut. Ben. of E. Orange, N. J.

• Decision Date: 05 January 1934
• Citation: 169 A. 831
• Parties: SPENZIERATO et al. v. OUR LADY MONTE VIRGINE SOC. OF MUT. BEN. OF EAST ORANGE, N. J.
• Court: New Jersey Supreme Court

169 A. 831

SPENZIERATO et al.

v. OUR LADY MONTE VIRGINE SOC. OF MUT. BEN. OF EAST ORANGE, N. J.

Court of Errors and Appeals of New Jersey.

Jan. 5, 1934.

Appeal from Supreme Court.

Action by Domenick Spenzierato, by his next friend, Allessandro Spenzierato and another, against Our Lady Monte Virgine Society of Mutual Benefit of East Orange, N. J. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Forlenza & Harrington, of Newark (William P. Braun, of Newark, of counsel), for appellant.

Nicholas Albano, of Newark, for respondents.

LLOYD, Justice.

The appeal is by our Lady Monte Virgine Society of Mutual Benefit of East Orange, one of the defendants in the above-entitled cause, from a judgment obtained by the plaintiff, and the grounds of appeal are that the court erred in denying the defendant's motion for nonsuit and for the direction of a verdict in its favor.

The action was to recover damages for injuries to a boy eight years of age, caused by the explosion of a bomb which had been left on a vacant lot by a fireworks company on the evening of the 8th of September, 1928.

The facts which the jury might have found were these: On the 8th and 9th of September, 1928, the defendant society gave a festival which included church services, band concerts, parades, and a fireworks display on the evening of the 8th. The fireworks were exhibited by another defendant under contract with the society. This display was given on an adjoining piece of property which had been leased by the society for the purpose. On the following day the boy plaintiff and other children were playing on the lots where the festival was being held, and while doing so one of the bombs was picked up and exploded, causing the injuries to the boy's hand, ultimately requiring its amputation. It appeared that the lot on which the bomb was found had been habitually used by children, of whom plaintiff was one, as a playground. There was some proof that the festival was continuing in some of its phases through the day of the 9th.

It was upon these proofs that the case was permitted to go to the jury. The motion for nonsuit was based on the ground that there was no proof of negligence. The motion for a direction was rested on the ground that by a preponderance of the evidence negligence had not been shown; that leaving the object on the ground was not the proximate cause of the accident; that there was no testimony to show that the defendant was responsible for the explosion of the bomb, and finally that, if an invitation was given by the defendant, it did not extend to the boy plaintiff.

The case is argued in appellant's brief solely on the ground of invitation and negligence. If the case rested on invitation, it is probable that under our cases no liability would attach by reason of the foregoing facts in the absence of...