Zboyan v. City of Newark

• Decision Date: 30 January 1928
• Docket Number: No. 116.,116.
• Citation: 140 A. 225
• Parties: ZBOYAN et al. v. CITY OF NEWARK.
• Court: New Jersey Supreme Court

140 A. 225

ZBOYAN et al.

v. CITY OF NEWARK.

No. 116.

Supreme Court of New Jersey.

Jan. 30, 1928.

(Syllabus by the Court.)

Appeal from Circuit Court, Essex County.

Action by Julia E. Zboyan and husband against the City of Newark. From a judgment of nonsuit, plaintiffs appeal. Reversed for the issuance of venire de novo.

Argued October term, 1927, before PARKER, MINTURN, and CAMPBELL, JJ.

Hugo Woerner, of Newark, for appellants.

Charles S. Gray, of Newark, for respondent.

PARKER, J. The female plaintiff sustained personal injury while marketing in the old City Market of Newark (now demolished) by the breaking of a skylight under which she was standing, and the fall upon her head of snow and ice and some of the glass of the skylight. She brought this suit against the city as for negligence, before the circuit court and a jury, her husband joining his claim for damages per quod. The trial court directed a nonsuit, and this judicial action is the subject of the appeal.

There was no question about the plaintiff being where she was by invitation. The market was like any other public market, containing stands at which tenants of the city sold their wares, and Mrs. Zboyan was there marketing in the course of her household duties. Her legal status was clear.

The city owed her a duty of care. It conducted the market as a public market, it is true, but on a mercantile or quasi mercantile basis, leasing stands to tenants at stipulated rents through an official called a market clerk, and placing the rentals in the city treasury. The case is therefore not within the rule in Freeholders v. Strader, 18 N. J. Law, 108, 35 Am. Dec. 530, but rather controlled by such cases as Karpenski v. South River, 83 N. J. Law, 149, 83 A. 839, same case in Court of Errors and Appeals, 85 N. J. Law, 208, 88 A. 1073, and Olesiewicz v. Camden, 100 N. J. Law, 336, 126 A. 317. With respect to this very market, the latter rule was alluded to in the per curiam opinion of this court in Ketcham v. Newark (N. J. Sup.) 128 A. 579. In the case sub judice it is not suggested that any other rule is applicable.

The real question, then, is whether there is anything in the case from which a jury might infer negligence. The trial judge correctly assumed that plaintiff was there by invitation, and that the city owed her a duty of care; but he was unable, apparently, to find any evidence of a breach of that duty, and remarked, in nonsuiting: "In the absence of any proof of the falling of this glass, I will grant the motion."

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