
    SAMUEL C. MARX, PLAINTIFF-APPELLANT, v. STANDARD OIL COMPANY OF NEW JERSEY, AND ANOTHER, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued October 31, 1949
    Decided December 14, 1949.
    
      Before Judges Jacobs, Donges and Bigelow.
    
      Mr. Arthur J. Sills argued the cause for plaintiff-appellant (Mr. David T. Wilentz, attorney).
    
      Mr. William L. Dill, Jr., argued the cause for defendant-respondent Standard Oil Company of New Jersey (Messrs. Stryker, Tams & Horner, attorneys).
    
      Mr. Harvey G. Stevenson argued the cause for defendant-respondent Mildred Naught.
   The opinion of the court was delivered by

Bigelow, J. A. D.

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 Companjr was the owner and Naught was lessee and operator. The plaintiff proved, or 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, 61 N. J. L. 358 (Sup. Ct. 1898); La Freda v. Woodward, 125 N. J. L. 489 (E. & A. 1940). To this rule there is an exception where the premises are leased for a purpose which involves the admission of large numbers of people. Restatement, Torts, § 356 and § 359. For instance, a boxing arena: Johnson v. Zemel, 109 N. J. L. 197 (Sup. Ct. 1932); or a bathing pavilion: Martin v. City of Asbury Park, 111 N. J. L. 364 (E. & A. 1933). A gasoline station is not within the exception, even though many persons in the aggregate, though not at the same time, come there. Brittain v. Atlantic Refining Co., 126 N. J. L. 528 (E. & A. 1941). Compare Webel v. Yale University (Conn.), 7 A. 2d 215; 123 A. L. R. 863 and annotation at page 873. The plaintiff cites Whitlock v. Howard Clothes, 132 N. J. L. 383 (E. & A. 1944), a case in which judgment was affirmed against the landlord as well as the tenant of a clothing store. The counsel who represented both appellants in that case, the lessor and the lessee, did not ask the court to apply the general rule that the lessor is not liable to the lessee’s invitees. We surmise that this is why the opinion of the court is silent on the subject. Or else the court considered the case to belong in the category of Martin v. City of Asbury Park, rather than Brittain v. Atlantic Refining Company. We are satisfied that the cause presently before us is governed by Brittain v. Refining Company and that a verdict in favor of the lessor Oil Company was properly directed.

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 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, 107 N. J. L. 288 (E. & A. 1930); compare Teas v. Curtiss-Wright Corp., 5 N. J. Super. 274 (App. Div. 1949). The accident occurred at 11 A. si. on a bright day. The grease pit was so prominent that it is difficult to understand how plaintiff failed to notice it, even though he was keeping his eyes fixed on the door to the office. To walk into a pit as large as this one, in broad daylight, was negligence, so plain that fair-minded men could not disagree about it.

Judgment affirmed.

Donges, J. A. D.

(dissenting). I agree with the conclusion reached by the majority opinion concerning the defendant, 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 N aught. 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 lo make a phone call. Although defendant did not sell 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, 62 N. J. L. 404 (E. & A. 1898), plaintiff was riding a bicycle and stopped on a bridge and began to dismount. She did this by stepping upon a timber guard. While in the act of thus stepping down upon the floor of the bridge, her foot went through an opening therein 9 inches long and 5 inches wide, which had been left along the timber guard. A nonsuit was ordered on the ground that the danger was an obvious one which plaintiff must have seen, if she had been in the exercise of ordinary care.

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 [29 N. J. L. 544] which was a suit to recover damages for injuries sustained by falling into an unguarded excavation which was within the line of the street and adjacent to a building of the defendant, in the night-time, the plaintiff had deviated from the middle of the pavement to look at some goods in a store window, and failing to look down and observe the excavation, he stepped into it. It was argued that thereby the plaintiff was culpably negligent and could not recover, but in the opinion of this court it is held that ‘the deviation from the middle of the sidewalk is not necessarily an act of carelessness, nor is the looking in al a store window conclusively an act of trespass or negligence. They may be so or not, according to the peculiar circumstances of the case. They are matters of fact to be submitted to the jury under the direction of the court, but they do not constitute sufficient ground of nonsuit.’ This doctrine is sanctioned in Houston v. Traphagen [47 N. J. L. 23] and in Sheets v. Connolly Railway Co., 25 Vroom 518.”

In Fort v. Reid Ice Cream Co., 98 N. J. L. 559 (E. & A. 1922), the court stated:

“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., 131 N. J. L. 311 (E. & A. 1944), when a woman reaching tor an article on the wall fell down a flight of stairs which she did not see, the court said:

“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., 91 N. J. L. 677.”

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, 4 N. J. Super. 78 (Super A. D. 1949), wherein plaintiff, an invitee, entered a bathroom on the premises of defendant and fell when a throw rug on which she stepped slipped. The court stated:

“Plaintiff opened tlie 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 (Sup. Ct. 1932); Hansen v. Brown, 123 N. J. L. 223 (E. & A. 1939).

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. Tjiere was no placard or other appliance to call attention to the pit. Plaintiff's attention was directed to some other object. It is hot 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.  