Walec v. Jersey State Electric Co., Inc.
| Decision Date | 21 May 1940 |
| Docket Number | No. 5.,5. |
| Citation | 125 N.J.L. 90,13 A.2d 301 |
| Parties | WALEC et al. v. JERSEY STATE ELECTRIC CO., Inc. |
| Court | New Jersey Supreme Court |
Appeal from Court of Common Pleas, Union County.
Action by Marion Walec, an infant, by her next friend, Mary Walec, and Mary Walec, individually, against the Jersey State Electric Company, Inc., for injuries suffered from fall in defendant's store. From a judgment of nonsuit, plaintiff appeals.
Reversed.
Argued May term, 1940, before BROGAN, C. J., and PARKER and PERSKIE, JJ.
Lewis Winetsky, of Linden, for plaintiffs-appellants.
Connolly & Hueston, of Elizabeth, for defendant-respondent.
The plaintiff appeals from a judgment of nonsuit in an action brought to recover damages for personal injuries. The plaintiff, an infant aged five, had entered the defendant's store, accompanied by her mother and grandmother. In the front part of the store there was an opening in the floor for the purpose of access to the cellar. There was a collapsible gate to guard the opening in the floor but at the time in question the gate was to one side and "tied with a string." In other words, at the time, the gate was not in use as a barrier to the opening in the floor. It also appears that there was a railing alongside the opening and the testimony is that merchandise concealed this railing because "ice-boxes and radios and lamps were stacked against it." It further appears that there was neither a light nor a sign nor a guard to warn the public of the floor opening which led to the cellar. One witness describes the railing as one that was "hidden with these ice-boxes and radios and things and there were no lights indicating that there were stairs there." We must accept the plaintiff's evidence of the facts as true and give her the benefit of whatever legitimate inferences these facts could reasonably support.
The learned trial court thought that there was sufficient evidence of negligence in the case but that proof was lacking as to just how the accident happened and that this failure of proof was fatal to the plaintiffs' case. We do not agree with this conclusion.
It is reasonably clear that the plaintiff as an invitee—and that was her status at the time—was privileged to go to any part of the store reserved for customers and that a place not intended for a customer's use, i.e., the opening to the cellar, should, in the exercise of common prudence and caution by the store's owner, have been made reasonably safe by a...
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