MacDonough v. F. W. Woolworth Co. , 91 N.J.L. 677 ( 1918 )

The opinion of the court was delivered by

White, J.

This appeal raises two questions, viz.— (a) was plaintiff invited by defendant to go- to the place in his store where she was injured, and (b) was that, under the circumstances here involved, a court or a jury question ?

Plaintiff entered the store with a vague purpose of buying something if she saw anything that she took a fancy to. Tip to this point there is no difficulty. The invitation of the storekeeper is clearly broad enough to include anyone who enters a genei*al store in this frame of mind.

She saw counters with merchandise displayed upon them, one extending down the middle of the store and one down each side, the latter in front of wall shelves of merchandise, with a space for the saleswomen to work between the wall shelves and the counters. Such an arrangement in itself extended no invitation to a customer to go behind these side counters into the space which was obviously for employes, and in a case involving nothing more, there being no evidence of invitation,- a court and not a jury question would arise. Rooney v. Woolworth (Conn.), 52 Atl. 411.

About half way down the store, however, the counter on one side had an opening or passageway through it, and immediately in front of or across the end of tire passageway and against the" wall, was a book rack consisting of five shelves, one above the other, and about four feet long. These shelves were filled with, miscellaneous books with the titles displayed for selection and with a sign above the rack stating that any book in the rack could be bought for ten cents. There was a dim electric light about six-inches above the book rack, and in order to read the titles of the books in the rack it was necessary to enter the passageway. Plaintiff saw the books and decided to buy a book. There was no saleswoman near the rack; and plaintiff, thinking the passageway was for that purpose, went into it to get where, by reading the titles to the books, she could select such as struck her fancy. In doing' this she stepped a little to one side and fell down a stairway, which she did not, and in the dim light was not likety to, see, and which was located back of the counter and immediately adjoining the passageway. The gate to the stairway was tied open at the time with a string.

We think, with the learned trial judge, that although none of the facts going to make up these existing conditions was disputed, nevertheless, the deduction to be drawn from them was a question of fact. It was not a, case where there was no evidence of invitation. The fact that books were displayed for selection by their titles' in front'of an'open passageway, which had to be entered in order to read the titles and make the selection, was somje evidence [of Ijnvitation. It was, therefore, for the jury to visualize the situation from the evideuce and decide whether the plaintiff had reasonable ground from what she saw for believing that she was invited or expected to go where she did go for the purpose she had in mind. Phillips v. Library Co., 55 N. J. L. 307.

The judgment is affirmed.

For affirmance — The Chancellor, Chief Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenhemier, Williams, Taylor, Gardner, JJ. 15.

For reversal — bfone.