Christine ex rel. Christine v. Vail , 12 N.J. Misc. 725 ( 1934 )

Botone, J.

The plaintiff, Elsie Christine, a young girl, entered the defendant’s store, she testified, to buy some candy and hot chocolate. She was walking to a table in the rear of the store in order to sit down while she drank the chocolate, when her dress caught afire and she was badly injured, for which she and her father were awarded damages. The fire was occasioned by the flames from a gas heater placed in the aisle between the tables. A motion to nonsuit was properly denied. Finnegan v. Goerke Co., 106 N. J. L. 59; 147 Atl. Rep. 442.

On the defendant’s case an attempt was made to show that no purchase was intended and that the injury was caused by the girl continuing to stand with her back to the stove, even though warned of the danger. A witness said she was loitering in the place to receive telephone calls.

There was no motion made for a directed verdict, but if it had been made it should have been denied. Finnegan v. Goerke Co., supra. “Where fair-minded men might honestly differ as to the conclusions to be drawn from facts, whether controverted or uncontroverted, the question at issue should go to the jury. And in a conflict of testimony, when the facts-found by the jury will sustain the verdict, the court will not set it aside, although in their opinion the jury might, upon the evidence, have found otherwise.” Finnegan v. Goerke, Co., 106 N. J. L. 61; 147 Atl Rep. 442.

How can it be said that it was not a matter of danger to customers to place and maintain a gas stove of the dimensions of this one in a store aisle, which should be free from obstruction, and to permit the flames to escape in such a manner that they could set fire to the clothing of a customer standing or passing by such source of danger? Eeasonable men could with entire propriety say that there was actionable negligence in this case. The issue was properly for the jury. Nor could it be said, if the jury believed the plaintiff’s testimony and that in her behalf, that she was in any respect 'negligent. The issues were, therefore, clearly for the jury and were submitted in a well balanced charge to which no exception was taken.

The judgment is affirmed, with costs.