176 A. 187 | N.J. | 1935
Suit was instituted by the plaintiffs, who are husband and wife, for personal injuries alleged to have been sustained by the wife, through the negligence of the defendant, and this appeal brings up for review a judgment based upon the jury's verdict which awarded the wife $1,000, and the husband $500.
The facts show that on August 9th, 1929, the plaintiff Frances Cleary entered the department store conducted by the defendant, in Paterson, New Jersey, and after making a purchase, had occasion to visit the ladies' rest room. The entrance to the rest room consisted of two swinging doors, in front of which was a step about eight inches higher than the outside floor, the outer edge of the step being approximately twenty-four inches from the base of the doors. When leaving the room and passing through the entrance, Mrs. Cleary fell, and as a result sustained a fractured wrist. *121
The defendant contends that the trial court erred in refusing to nonsuit and to direct a verdict in its favor.
The complaint alleges "that the said fall of the plaintiff Frances Cleary was caused by the improper location, construction and maintenance of the doors and steps forming the exit from said rest room," and that "the defendant was negligent in causing said doors and stairs of said exit to be constructed and maintained in such a dangerous, careless and negligent manner. The improper construction and maintenance of said doors and stairs was a nuisance maintained by said defendant," and further, that "the defendant failed and neglected to maintain a guard at said exit, to protect its patrons and business invitees from injury."
The record indicates that Mrs. Cleary was the only witness produced on behalf of the plaintiffs, to support the allegations contained in the complaint; and we do not find that her testimony established any facts from which negligence might be reasonably inferred, or to show that the defendant had violated its duty toward the plaintiff, who was an invitee, to exercise ordinary care to render the premises reasonably safe for the purpose for which she entered. Her version of the conditions which existed and the circumstances relating to the happening is best illustrated by quoting her testimony in part: "Q. Will you tell the court and jury just what happened while you were in Meyer Brothers' store? A. Well, I went into the store and I got a pair of bedroom slippers for my daughter, then we went to the rest room; coming out of the rest room I pushed this swing door and made one step forward and fell.
"I had been in the ladies' rest room and upon leaving I pushed the swinging door outward and I misjudged my step and fell forward to the floor, * * *. When I came out of the rest room I thought that the flooring was all even and did not notice the steps over which I stepped. This accident was not caused through the carelessness of any one of the employes of Meyer's store, and it was broad daylight and the store was well lighted."
The burden of proving the charge of negligence contained in the complaint was on the plaintiffs, and must be sustained either by proof of some negligent act, or by a proof of circumstances from which the defendant's want of due care is a legitimate inference.Bien v. Unger,
Negligence is a fact which must be shown. It will not be presumed. There is always a presumption against negligence.McCombe v. Public Service Railway Co.,
We do not think there was sufficient evidence to support the verdict in the present case; and it has been repeatedly held by our courts, and is a settled rule of practice, that where the evidence with all fair and legitimate inferences arising therefrom, is insufficient to sustain a verdict for the plaintiff, which would be set aside, if rendered, the court should direct a verdict for the defendant. McCormack v.Standard Oil Co.,
We conclude, therefore, that it was error for the court to submit this case to the jury, and the judgment under review must be reversed. *125 For affirmance — None.
For reversal — THE CHANCELLOR, CHIEF JUSTICE, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, JJ. 14.