Corbett v. WarnerCorbett v. Warner
The opinion of the court was delivered by
This is an appeal from a judgment of the Hudson County Court of Common Pleas which judgment resulted from granting a nonsuit against both plaintiffs. The motion to nonsuit was made аt the termination of the opening of the case by plaintiff’s attorney. At that time he was given an opportunity by the court to enlarge the opening. Although he did make additional remarks, no new facts were brought forth. The motiоn to nonsuit was then granted.
*282 Prom the facts so stated, it appeared that respondent, Robert Warner, was the lessee in possession and control 'of a gasoline station which fronted on Hudson Boulevard in Jersey City and occupied the entire area, approximately 150 feet, east of the Boulevard and between Underwood Place and Beacоn Avenue. The entire surface of the station had been paved with cоncrete and it appeared that it was customary for their convenience for members of the public to cross over parts of the stаtion from time to time to avoid the longer but public route by the sidewalk of trаveling on Underwood Place to Hudson Boulevard and then turning and traveling on Hudson Boulevard to reach Beacon Avenue.
It appeared that the defendant had piled snow on the premises in front of the station building which hаd thereafter melted and then froze so that parts of the concrеte surface on the private premises were slippery. The plaintiff Prances Corbett who was on her way to a store on Beacon Avеnue crossed from Underwood Place to Beacon Avenue aсross the premises occupied by the defendant.
While so doing she slipрed on the ice and fell and sustained injuries, which are the basis of this suit. She brought аn action against defendant Warner and the Richfield Oil Corporation, hеr husband joining in a count per quod. At the beginning of the trial, plaintiffs discontinued the action аgainst the Richfield Oil Corporation and attempted to proceed against the defendant Warner. This was halted by the granting of the motion to nonsuit.
The single question before us is whether upon the facts in the opening the plаintiffs were correctly nonsuited. Counsel did not incorporate by reference the facts stated in the complaint, nor state to the court and jury that in addition to the opening statement he proposed to prоve the facts set forth in his complaint. The appellant cannot now in this court fall back upon the facts stated in the complaint, as he is dеemed to have waived reliance upon the facts pleaded in the complaint. Taggart v. Bouldin (Court of Errors and Ap peals, 1933), 111 N. J. L. 464; D’Aloia v. Unions Fratellanza (Court of Errors and Appeals, 1913), 84 Id. 683; Carey v. Gray (Court of Errors and Appeals, 1922), 98 Id. 217.
*283 The well established rule is that on a motion for a nonsuit thе defendant admits the truth of the plaintiff’s evidence and of every favorаble inference fairly to be deduced therefrom but denies their sufficienсy in law. Willins v. Ludwig (Court of Errors and Appeals, 1947), 136 N. J. L. 208; Strutko v. Mann (Court of Errors and Appeals, 1939), 124 Id. 183.
With this rule in mind, the most favorable status to the plaintiffs arising from the facts as stаted in the opening is that the plaintiff Prances Corbett was a licensee upon the defendant’s lands. There were no facts from which an invitation, express or implied, might be spelled so as to invoke the duty to exercisе ordinary care to render the premises reasonably safe for suсh invitee. As such, defendant owed her the duty to refrain from acts willfully injurious. Phillips v. Library Co. (Court of Errors and Appeals, 1893), 55 N. J. L. 307; Lordi v. Spiolta (Supreme Court, 1946), 133 Id. 581; Carey v. Gray, supra. Plaintiffs attempted to avoid the import of this by alleging an easement. However, the facts as stated in the opening did not give rise in law to the existence оf such an easement. Holmes v. Murphy (Supreme Court, 1923), 1 N. J. Mis. R. 126. The case of Drelich v. Erie Railroad Co. (Court of Errors and Appeals, 1917), 91 N. J. L. 600, relied upon by plaintiff is distinguishable on the facts. Plaintiffs furthеr alleged that the manner of shovelling of the ice and snow constituted a trap. With this reasoning, we do not concur. Taggart v. Bouldin, supra; Lewis v. Dear (Court of Errors and Appeals, 1938), 120 Id. 244.
It was not error to grant the nonsuit and the judgment of ike Hudson County Court of Common Pleas is affirmed.