| N.J. Super. Ct. App. Div. | Dec 14, 1949
Lead Opinion
Donges, J.A.D., dissented. *40 The learned trial judge directed a verdict for the defendant, Standard Oil Company, and the jury returned a verdict for the other defendant, Mildred Naught. From the judgment thereon, the plaintiff appeals. The action was brought for damages sustained by plaintiff as a result of falling into a grease pit in the automobile service station of which the Oil Company was the owner and Naught was lessee and operator. The plaintiff proved, or *41 endeavored to prove, that the premises were so laid out that the pit is a danger to strangers entering the station.
First, let us consider the case against the Oil Company. There is no implied covenant by a lessor that the demised premises are suitable for the use which he is aware is intended by the lessee. The lessor is not liable to the lessee or to invitees of the lessee for injuries received by them in accidents that may be attributed to the faulty planning or construction of the premises. Clyne v. Helmes,
The service station was of a general design familiar to all of us — on one side, a room or office where are kept sundry articles for sale and to which customers resort; on the *42 other side, the "lube bay" or room for greasing cars. The entrance to the latter room is an opening eight feet wide by about ten feet high, through which automobiles can be easily driven. Within the room, only 15 inches from the doorway or opening, is the pit, three and one-half feet wide, four or five feet deep, and so long as a car. In the wall separating the lube bay from the sales office, is a door. Besides this door, there is the main door to the sales room in the front of the building. The plaintiff approached the service station from the left, that is, the greasing room side, and glancing across the lube bay, he noticed the side door to the sales room. Without paying any attention to what lay between him and the door, he started diagonally across the greasing room and stepped into the pit and was severely injured.
The court charged the jury: "Should you find that the pit was open to view and not concealed and that had plaintiff looked he must have seen it, then he is guilty of contributory negligence as a matter of law and you must find in favor of the defendant." Since the testimony and the photographs showed beyond dispute that the pit was open to view and that plaintiff would have seen it had he looked, the jury had no alternative but to return a verdict for defendant. Even so, we perceive no error, for we are satisfied that the plaintiff was guilty of contributory negligence and that the court might well have directed a verdict for both defendants on this ground. Adams v. Olsen,
Judgment affirmed.
Dissenting Opinion
I agree with the conclusion reached by the majority opinion concerning the defendant, *43 The Standard Oil Company. However, I am constrained to dissent from the determination to affirm the judgment under review with respect to the other defendant, Mildred Naught, T/A Hi-Way Service Station.
Plaintiff was injured on July 2, 1947, as a result of falling into a grease pit located in a service station adjacent to and on the right side of the Howard Johnson Restaurant on the highway in Woodbridge, New Jersey. The service station was owned and constructed by defendant, Standard Oil Company, and operated by its lessee, the defendant, Mildred Naught. The testimony shows that the grease pit was located within the enclosed walls of the service station and that the forward portion of the pit was only 15 to 20 inches from the entrance door of the station. There was no guard rail or other protective device across the front of the pit, or other notice of its presence.
On the morning of July 2, 1947, plaintiff stopped at the Howard Johnson Restaurant. The restaurant was not yet open and plaintiff walked over to the service station to purchase some cigarettes and to telephone his office. As he approached the service station entrance, he saw a door at the right side of the pit as he approached it, leading into the office from the service room. He stepped through the entrance while he was looking at the office door, and without looking on the floor of the room. At that moment he fell into the pit and was injured.
The court below directed a verdict in favor of the defendant, Standard Oil Company. The jury returned a verdict of no cause for action as to the defendant, Mildred Naught. Plaintiff contends that the court committed prejudicial error in charging defendant's requests to charge numbers 6 and 7.
As I have already indicated, I feel that court properly directed a verdict as to the Standard Oil Company, but that it erred in its charge concerning Mildred Naught.
It is important to note that the plaintiff was an invitee of the defendant, Mildred Naught. The evidence indicates that the plaintiff went to the station to buy cigarettes and to make a phone call. Although defendant did not sell *44 cigarettes, she did have a public "pay station" telephone from which she received a commission from the telephone company. Under these circumstances, I feel that the plaintiff was an invitee.
In charge number 6 the court stated:
"Should you find that the alleged defective condition of the premises consisted of a device or pit contained within a room specifically provided for it and should you find that the said pit was open to view and not concealed and that had plaintiff looked he must have seen it, then he is guilty of contributory negligence as a matter of law and you must find in favor of the defendant."
The effect of this charge was to impose as a matter of law an obligation upon plaintiff to look at the pit, and, since plaintiff's own testimony was that he did not look at or see the pit, the jury, under this charge, was in effect instructed to return a verdict for the defendant. The majority opinion indicated that even though the jury had no alternative under the charge, that this was not error because they feel that the plaintiff was guilty of contributory negligence and the court might well have directed a verdict for the defendant on this ground. The effect of this decision is to impose a duty upon all plaintiffs to make an observation under all circumstances.
The court below was, at any rate, very inconsistent. It purported to let the case go to the jury, and in its charge effectively took the case from the jury. I feel that the question of whether plaintiff was guilty of contributory negligence under the circumstances present herein was a matter for the sole determination of the jury. A plaintiff does not always have a duty of inspection.
In Mahnken v. Board of Chosen Freeholders of Monmouth County,
In reversing the court below, the court stated:
"It cannot be said that the plaintiff actually saw the opening in question or even knew of the existence of any of these openings, for her uncontradicted evidence is that she did not. And on the question of whether she is to be held liable for imputed knowledge on the subject, on the ground that she must have seen them if she had looked, the further principle of law is pertinent that it is not negligence per se for a traveler on foot or upon a vehicle to lift his eyes from the path he is traveling where there are other objects that may attract his attention.
"In Durant v. Palmer, supra [
In Fort v. Reid Ice Cream Co.,
"The question of contributory negligence of the plaintiff was clearly for the jury. In the absence of any knowledge or reason to know that there was an open hole at that point, he was not required, as a matter of law to keep his eyes on the floor."
Likewise in Groener v. F.W. Woolworth Co.,
"It was * * * likewise a question of fact whether she was guilty of contributory negligence in failing to observe the condition there existing. MacDonough v. F.W. Woolworth Co.,
A more recent case enunciating the principle that it is not always incumbent upon a person to make an observation is the case of Goldstein v. Hotel Altman,
"Plaintiff opened the door and walked in without, so far as the record indicates, making any observation. Whether under these facts, she exercised reasonable care for her own safety was a question for the trier of fact."
See also Sutton v. Lerner Stores Corp., 10 N.J. Misc. 1126" court="N.J." date_filed="1932-10-17" href="https://app.midpage.ai/document/sutton-v-lerner-stores-corp-7294644?utm_source=webapp" opinion_id="7294644">10 N.J. Misc. 1126
(Sup. Ct. 1932); Hansen v. Brown,
As this line of cases clearly indicates, a duty is not always imposed on a person to make an observation of the existing circumstances.
In the case under review the plaintiff stated that he was looking at the office door at the time he fell. This may or may not have been contributory negligence. However, it is a circumstance upon which reasonable minds may differ. In such a case the question is clearly one for the jury. There was no placard or other appliance to call attention to the pit. Plaintiff's attention was directed to some other object. It is not negligence per se for a traveler on foot to have his attention focused on an object. Whether his failure to observe the pit amounted to culpable negligence under the circumstances of this case, is, I feel, a jury question which the jury should have been permitted to decide.
Charge number seven, which likewise imposed a duty on plaintiff to make an observation under the circumstances mentioned above, is, I feel, likewise defective for the reasons mentioned above.
I conclude that the judgment under review for defendant, Mildred Naught, t/a Hi-Way Service Station should be reversed. *47