Walker v. F. & W. Grand 5-10-25 Cent Stores, Inc.

• Citation: 137 A. 563
• Decision Date: 21 May 1927
• Docket Number: No. 453.,453.
• Parties: WALKER v. F. & W. GRAND 5-10-25 CENT STORES, Inc.
• Court: United States State Supreme Court (New Jersey)

137 A. 563

WALKER

v. F. & W. GRAND 5-10-25 CENT STORES, Inc.

No. 453.

Supreme Court of New Jersey.

May 21, 1927.

Appeal from District Court of Elizabeth.

Action by Adeline M. Walker against the F. & W. Grand 5-10-25 Cent Stores, Inc. Judgment for plaintiff, and defendant appeals. Reversed.

Argued January term, 1927, before KALISCH, KATZENBACH, and LLOYD, JJ.

McDermott, Enright & Carpenter, of Jersey City, for appellant.

Frank Cohn, of Elizabeth, for respondent.

PER CURIAM. The defendant appeals from a judgment rendered against it in the Elizabeth district court by the judge sitting without a jury at the suit of Adeline M. Walker, who claimed to have been injured by a fall due to the faulty condition of stairs in the defendant's store.

The evidence disclosed that the plaintiff visited the store on the 21st of December. 1925, to make some purchases, and that as she was going down a stairway from the first floor to the basement she fell and sustained injuries. It was proven that at the edge of each step on all of the stairways in the store (there were two others) there was a brass metal nosing, about one inch wide, which had become worn by use, and it is inferable that the plaintiff slipped on one of these worn metal nosings. There was a motion for a nonsuit at the end of the plaintiff's case, and this was denied and judgment rendered for the plaintiff. The refusal of the court to grant the motion for nonsuit and the rendition of the judgment for the plaintiff are the basis of the present appeal.

No exception appears to have been taken at the time the motion for nonsuit was made, and it is therefore not a ground of appeal. The act of 1916 (P. L. p. 109), however, gives to an aggrieved litigant a right to have reviewed on appeal any error in the giving of final judgment without the grounds of objection being specifically submitted.

Upon the latter ground we must consider the case, and as a result we think the judgment below cannot be sustained. The facts practically parallel the case of Garland v. Furst, 93 N. J. Law, 129, 107 A. 38, 5 A. L. R. 275, in which the proofs were identical, except in that case the offending instrument was a smooth, slippery floor, and in the present case it was a smooth nosing on the steps. These nosings are such as are commonly placed on stairways where large numbers of people are passing up and clown. It is common knowledge that such metals become smooth when worn, but under the case cited it does not constitute...