Law School Case Brief
Rush v. Commercial Realty Co. - 7 N.J. Misc. 337
In a premises liability/negligence action, whether it was contributory negligence to step on a floor that plaintiff testified was in bad order, was a question for the jury to solve according to its finding of the conditions and her knowledge of them, or what she should have known of them; it does not seem to be a court question.
Plaintiffs Mary Rush and her husband, Martin Rush, were tenants of defendant Commercial Realty Company ("Commercial"), which controlled the house in which the Rushes lived, as well as the adjoining house. Commercial provided a detached privy or "outhouse" for the use of both houses. When Mrs. Rush entered the privy, she fell through the floor, or through some sort of trap door in the floor, and fell about nine feet into the accumulation at the bottom. A ladder was used to extricate her from the trench. The Rushes filed a negligence action against Commercial in New Jersey circuit court. Commercial denied that there was any pit at all and claimed that the floor was only about nine inches above solid ground. At trial, Mrs. Rush testified that the privy's floor was in "bad order." Commercial filed motions for a nonsuit and for a directed verdict, which the circuit court denied. Commercial appealed.
Did the circuit court err when it denied Commercial's motion for a nonsuit?
The state supreme court affirmed the circuit court's judgment. The court observed that the jury was entitled to find that Commercial, as landlord, had a duty to maintain the privy it provided for the Rushes and other tenants and Mrs. Rush's injury was caused by a defective condition in the floor, which the jury might say was due to negligent maintenance. As such, the court noted, the argument for a nonsuit or for a directed verdict was restricted to the questions of contributory negligence and assumption of risk. The latter was inapplicable, because Mrs. Rush was not required to leave the premises and go elsewhere. Whether Mrs. Rush was contributorily negligent was a question for the jury to solve according to its findings of the conditions and her knowledge of them, or what she should have known of them. It was not a question for the court.
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