White v. Ellison Realty Corp.

• Citation: 19 A.L.R.2d 264,74 A.2d 401,5 N.J. 228
• Decision Date: 05 June 1950
• Docket Number: No. A--144,A--144
• Parties: , 19 A.L.R.2d 264 WHITE v. ELLISON REALTY CORPORATION.
• Court: United States State Supreme Court (New Jersey)

Page 228

5 N.J. 228

74 A.2d 401, 19 A.L.R.2d 264

WHITE v. ELLISON REALTY CORPORATION.

No. A--144.

Supreme Court of New Jersey.

Argued June 5, 1950.

Re-argued on Court's own motion

June 19, 1950.

Decided June 27, 1950.

Hyman W. Rosenthal, Newark, and Harry Chashin, Paterson, argued the cause for appellant, Marcus & Levy, Paterson, attorneys.

Sidney M. Schreiber, Newark, argued the cause for respondent. Roger F. Lancaster, Newark, on the brief. McKeown, Schreiber & Lancaster, Newark, attorneys.

The opinion of the court was delivered by WACHENFELD, J.

The plaintiff appeals from a judgment of dismissal entered in the Superior Court, Law Division, on motion of the defendant made at the conclusion of the plaintiff's case. The appeal was taken to the Appellate Division of the Superior Court and certified here on our own motion.

The action arose out of injuries sustained by the plaintiff by reason of the falling of an elevator constructed on the exterior of the defendant's building. The plaintiff was at the time an employee of Sears, Roebuck & Company, the tenant of a portion of the defendant's premises on Ellison Street in Paterson.

The lease in effect at the time of the accident was entered into on June 17, 1946 between Sears, Roebuck and Dixon Properties, Inc., the defendant's predecessor in title. The lease specifically demised 'the basement only, 140 X 48, containing approximately 6,760 square feet' and in the fourth paragraph contained these words: 'Landlord hereby covenants that he will, at his own expense, keep in good condition and repair during the term of this lease * * * elevators * * * in or about the demised premises.' There was no elevator in the building at the time the lease was made nor did the landlord by the terms of the instrument obligate itself to install one. The lease did provide, however, for an increase in the rent 'when hydraulic or electric lift is installed.'

Dixon Properties had the elevator installed on September 11, 1946 and the defendant acquired title to the premises by conveyance on October 18, 1946. At the time of the conveyance the officers and stockholders of the defendant were the same persons as the officers and stockholders of Dixon Properties.

The accident occurred on November 1, 1946. On several occasions prior thereto the elevator had stuck and otherwise failed to operate properly. This had been called to the attention of Nichimson, the president of the defendant and its predecessor company. On one occasion he said: 'I will get it fixed,' and on another: 'Take your time, I will fix it for you.' When it was pointed out to him that a nut on the motor of the elevator had come loose, he said: 'O.k., I will fix it right away.' Nichimson among other duties had the job of general maintenance and repair of the premises and had personally attempted to make repairs to the elevator before the accident.

The lift was used primarily by the tenant, Sears, Roebuck, in transporting its goods to and from the basement. It was, however, in a common yard accessible to all the tenants of the defendant and persons other than employees of Sears, Roebuck used it on occasions. One such occasion was in the latter part of October, when the defendant converted the heating system of the building from coal to oil. This took approximately two weeks, during which the elevator was used regularly by a crew of about eight men engaged in the conversion.

On November 1 plaintiff loaded shingles on the elevator in the basement, went upstairs and, operating the elevator from there, raised the platform to a height of thirty to thirty-six inches above the ground. He then loaded the shingles on a truck which departed. The plaintiff tried to lower the elevator but it stuck. He got on the platform and attempted to operate it by using the control cords but still the platform would not move. He requested the assistance of one Hermanie, an employee of another tenant of the premises who happened to be present. Hermanie put his hands on the platform and moved it from side to side, a process which in the past had restored the operation of the elevator when it became jammed. As soon as Hermanie did this, the platform crashed into the basement. The plaintiff went down with it, sustaining the injuries which are the basis of this action.

The complaint was in one count and alleged, among other things: '* * * said defendant and its agents violated their duties in these respects in that they carelessly and negligently failed to plan and construct, and keep and maintain said premises and more particularly a certain public and common elevator, hoist or lift therein contained, with due construction and regard for the safety and well-being of tenants, tradesmen, deliverymen, warehousemen and employees, or other such invitees, with good and standard workmanship and design, in a sound or proper state and condition and in a suitable and fit fashion for the purposes for which said elevator, hoist or lift was intended, held out and apparently adapted and failed to examine and inspect it, find and discover all faulty and improper states and conditions thereof and properly attend to and remedy the same and failed to keep, conduct and operate said instrumentality in good order and safe and proper manner, equipped with sound and proper safety devices and appliances and failed to disclose or make known to such invitees the existence of latent, concealed or other dangers or defects thereof in construction, condition or operation of which it or its agents knew or ought to have known so as in no wise to create or permit the creation of a menace to the persons of those lawfully using the said elevator, hoist or lift in violation of the local ordinances and laws of the State in such case made and provided.'

At the trial the plaintiff sought to amend his complaint by adding a count in nuisance. The court below denied his motion on the ground that an action in nuisance was barred by the Statute of Limitations at the time the motion was made.

The case was tried before a jury but at the conclusion of the plaintiff's testimony the trial court, on the defendant's motion, entered judgment for dismissal on the grounds hereinafter commented on.

The appellant first cites as error the trial court's action in excluding the amendment to add a count in nuisance. We think the court ruled correctly in this respect. The complaint was sufficiently broad in its wording to embrace the theory of nuisance and to support whatever evidence the plaintiff proffered showing the maintenance of the elevator in an unsafe condition so as to render its use dangerous to persons lawfully on the premises. The trial court's denial of the motion to amend did not limit the appellant's proof under the theory on which he tried the case.

The appellant next urges the trial court erred in granting the defendant's motion for dismissal. The court based its motion on a finding '* * * as a matter of law, that the plaintiff has failed in discharging the burden of proof to exclude all other outside intervening causes' and upon a further finding '* * * as a matter of law, that on the plaintiff's own testimony the plaintiff, with knowledge of the dangerous character of this instrumentality, was guilty of contributory negligence or assumed the risk under all of the facts in the case.'

The intervening cause which operates to bar a plaintiff's recovery in a negligence action must be a culpable and efficient cause. Woschenko v. C. Schmidt & Sons, 2 N.J. 269, 66 A.2d 159 (1949). An efficient cause is 'the one that necessarily sets the other causes in operation.' Batton v. Public Service Corporation of New Jersey, 75 N.J.L. 857, 69 A. 164, 165, 18 L.R.A., N.S., 640, 127 Am.St.Rep. 855 (E. & A.1908); Kelson v. Public Service R.R. Co., 94 N.J.L. 527, 110 A. 919 (E. & A. 1920). It is the 'act or omission which directly brought about the happening complained of, and in the absence of which the happening complained of would not have occurred.' Silverstein v. Schneider, 110 N.J.L. 239, 164 A. 480, 482, (E. & A. 1933); Batts v. Joseph Newman, Inc., 3 N.J. 503, 71 A.2d 121 (1950).

The intervening cause referred to by the court below consisted of the plaintiff's act in persuading Hermanie to move the elevator platform from side to side while the plaintiff stood upon it. The proof does not show this action to have been the efficient, proximate cause of the shearing of the metal pin and the subsequent crash of the elevator, nor to have played any part in producing these results. It indicates, on the contrary, the shearing was caused by the installation of the hoist in such a manner that, when it was raised to its full height, the hook at the top hit the housing, placing an undue strain upon the shear pin. The condition had been specifically called to Nichimson's attention several days before the accident and evoked a promise from him to have the necessary repairs made. In this state of the evidence, whether the plaintiff's act constituted an intervening, efficient cause was not a matter of law to be decided by the court but was an issue of fact to be submitted to the jury.

We reach a like conclusion on the question of the plaintiff's contributory negligence or assumption of risk. These legal concepts are virtually identical, Hammond v. County of Monmouth, 117 N.J.L. 11, 186 A. 452 (Sup.Ct.1936), and are ordinarily questions for the jury. Siggins v. McGill, 72 N.J.L. 263, 62 A. 411, 3 L.R.A., N.S., 316, 111 Am.St.Rep. 666 (E. & A. 1905); Van Pelt v. Sturgis, 102 N.J.L. 708, 133 A. 303 (E. & A.1926); Wright v. A.J.M. Holding Co., 130 N.J.L. 239, 32 A.2d 503...