concluding that whether missing brick in top of step porch is negligently maintained defective condition held to constitute jury question
How later courts described this case
- concluding that whether missing brick in top of step porch is negligently maintained defective condition held to constitute jury question
- whether missing brick in top step of porch is a negligently maintained defective condition held to constitute a jury question
- expert not required to explain dangerous condition caused by a missing brick in top step of porch
- expert not required to explain dangerous condition caused by missing brick in top step of porch
Written by the judges who cited it.
The opinion
Hall, J.
(dissenting). My disagreement with the majority’s conclusion of affirmance is based on the holding that there was sufficient evidence from which a jury could properly find that plaintiff’s fall was caused by stepping into the cavity created by the removal of the brick at the corner of the porch. In my opinion the trial judge was eminently correct in granting defendant’s motion for judgment at the end of the entire case for lack of adequate proof of that vital element.
The only evidence on the question was plaintiff’s own testimony, fully quoted in the majority opinion, in which she said in practically identical words on each of the three times she was asked about the matter, that her foot “went into” an unknown “something that was empty.” Significant to me is that she did not say or even intimate that her foot touched anything. This it seems would have had to have happened, and as to which she would have testified had it occurred, if she in fact had stepped into the relatively small space of the missing standard brick (2%" wide, 3%" deep and 8" long). What she said and what she did not say is to me physically consistent only with having stepped completely off the porch itself at the corner. The broken rosebush, suggested by the majority as supporting the probability of plaintiff’s theory, is so located that it would have been damaged under either hypothesis.
*104 I can, therefore, see no reasonable inference of probability that the accident was caused by stepping into the cavity. It appears to me the very best that plaintiff can gain from the proofs is a speculative inference of possibility. There is just as much of a possibility, and I suggest the only reasonably probable inference, that the fall resulted from stepping off the porch clear of the brick space. There was consequently not enough to take the case to the jury. As this court said in the leading case of Callahan v. National Lead Co., 4 N. J. 150, 154 (1950) :
“Our courts have repeatedly decided that the existence of a possibility of a defendant’s responsibility for a plaintiff’s injuries is insufficient. In the absence of direct evidence, it is incumbent upon the plaintiff to prove not only the existence of such possible responsibility, but the existence of such circumstances as would justify the inference that the injury was caused by the wrongful act of a defendant and would exclude the idea that it was due to a cause with which the defendant was unconnected. While proof of certainty is not required, the evidence must be such as to justify an inference of probability as distinguished from the mere possibility * * ®.”
A very closely analogous factual situation is found in Hillelson v. Renner, 183 Pa. Super. 148 , 130 A. 2d 212 (Super. Ct. 1957), where the court held the defendant was entitled to a direction for the same reason I urge here. I would reverse the judgment of the Appellate Division and reinstate that of the trial court.
For affirmance — Chief Justice Weintbatjb, and Justices BuKLiire, Jacobs, Ebancis, Pboctob and Schettino — 6.
For reversal — Justice Hall — 1.