Van Pelt v. Sturgis

• Citation: 133 A. 303
• Decision Date: 17 May 1926
• Docket Number: No. 40.,40.
• Parties: VAN PELT v. STURGIS et al.
• Court: United States State Supreme Court (New Jersey)

133 A. 303

VAN PELT

v. STURGIS et al.

No. 40.

Court of Errors and Appeals of New Jersey.

May 17, 1926.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Emma Van Pelt against D. Farrand Sturgis and another, partners, doing business under the firm name of Sturgis Bros., for personal injuries. Judgment for the plaintiff, and defendants appeal. Affirmed.

Kellogg & Chance, of Jersey City, for appellants.

King & Vogt, of Morristown, for respondent.

HETFIELD, J. This is an appeal from a judgment of the Supreme Court, entered upon a verdict for the plaintiff below at the Morris circuit. The action was brought by the plaintiff against the defendant for injuries sustained as a result of a fall on the sidewalk in front of the Morris County Savings Bank building at Morristown, caused by tripping over a marble block placed there by the defendant contractors, who were altering and remodeling the bank building. The sidewalk was about 18 feet wide, and the contractors during the course of their work had left thereon building materials. Near the curb was a pile of lumber, and alongside of the lumber toward the building there were two marble blocks, which had been placed, one upon the other. Each block was about 3 feet long, 12 inches wide, and 8 inches deep; the lower one being somewhat larger than the upper, causing a projecting corner on which the plaintiff tripped and fell. On the inside of the sidewalk opposite the marble blocks and against the bank building was a pile of steel beams and other building materials. There was an unobstructed passage of approximately 8 feet wide between the marble blocks and the steel beams.

The appellants present only two grounds of appeal. The first is that the court erred in refusing to charge the following request:

"A pedestrian is bound to exercise ordinary care, not only to avoid dangerous places known or seen, but also those of the existence of which she is ignorant."

This request was substantially covered by the court's charge in the following language:

"Now, she had the duty of using care, using the prudence, and using the observation, that a reasonably prudent person would have exercised under the time, place, and circumstance, and, if she did not, then she cannot recover."

The court did not limit the duty of the plaintiff to only using care in avoiding dangerous places known or seen, as was done by the trial court in Quimby v. Filter, 62 N. J. Law, 766, 42 A. 1051, but in explicit language charged in effect that it was the plaintiff's duty to use such care as a person of reasonable or ordinary prudence might exercise under like circumstances, which included all the surrounding conditions whether previous ly known to plaintiff or not. The trial judge, when stating the legal rule called for, is not required to adopt either the form, or the words, or the collocation of phrases, in which the request to charge is framed. Pavan v. Worthen & Aldrieh Co., 80 N. J. Law, 567, 78 A. 658, affirmed 82 N. J. Law, 615, 83 A. 960. Assuming the defendant's request was proper, it was sufficiently covered by the charge; therefore the failure to charge in the language of the request was not error.

The next ground of appeal is that the trial judge refused to direct a verdict for the defendant. The motion for a direction was urged on the ground...