55 N.J.L. 628 | N.J. | 1893
Lead Opinion
The opinion of the court was delivered by
This is an action brought for the recovery of damages resulting from an injury received by Mrs. Martha Hough, one of the plaintiffs, and for which it is claimed that the board of chosen freeholders of Morris county are responsible. It includes, first, her claim, and, second, that of her husband. On October 26th, 1891, Martha Hough was injured by falling from the abutment or wing wall of a bridge over the Rockaway river, in Union street, in the town of Dover. The accident occurred as she was passing along Union street. The street, and the bridge connecting the same, both before and at the time of the injury, were used as a continuous public street and highway. The bridge was the connecting link across the Rockaway river. She was walking on the sidewalk on the easterly side of Union street, on her way home, which necessarily led her across the bridge. The night was dark and rainy. She was unable to see for any distance, and, relying on the sidewalk as a safe access to the footway of the bridge, she proceeded along Union street and walked off the wall at the place where the sidewalk of Union street abutted and joined the abutment or wing wall on the easterly side of the bridge. The sidewalk and the top of this wall were about on a level. There was no light, no barrier, no protection. The unguarded wall at the end of the sidewalk, in the condition it was on the night of the accident, was dangerous to pedestrians. The evidence shows that this bridge was built to replace an old wooden truss bridge that had broken down and was impassable. The defendants appointed a committee to rebuild the bridge, replacing it with a
On this last date the work already completed was examined and approved, and the bridge became a public work, constructed by a public corporation and opened for public use. The bridge was not, however, at that date entirely completed so far as access to it from the easterly sidewalk of Union street was concerned. The plan adopted contemplated raising the sidewalk on each side of the bridge structure. It is evident that the committee did not contemplate the filling up of
The exceptions to the refusals to charge otherwise than as charged, are as follows :
3. That there was no evidence that the defendants adopted any plan with reference to the filling up of said sidewalk, that was to be carried out by any other person.
5. That there- was no evidence to show that the defendants had actual knowledge or notice that the approaches to the bridge had become in a dangerous condition by reason of the change of grade of Union street or of the filling of the sidewalk, and that, therefore, if they were in a safe condition on the 29th day of July, when their work was completed, they would not be liable unless actual notice of the change in the condition of the approach to the bridge had been given to defendants.
6. That the river or wing wall was not a part of the bridge or its approaches which the defendants were required to keep in repair.
7. That if the defendants ordered a railing put up along the wing wall, which it was not their duty to order or erect, they would not be liable for any injury which may have occurred to the plaintiffs by reason of the railing not being erected at the time of the accident.
There are three other requests to charge, being Nos. 1, 2 and 4, which are specifically stated hereafter.
This act has been held to be a remedial statute and to be one that should be construed to give a remedy by action for all injuries to persons or property where the municipal body is bound by law to build, rebuild and repair a bridge, with a view to the safety to persons and property, and it shall neglect to perform the duty thus required, of it and damage shall result directly to those persons or that property. Jernee v. Monmouth, 23 Vroom 553, 557.
The liability under this act only arises in this case if the • proofs establish — First, that the board of chosen freeholders were chargeable by law with the erection, rebuilding or repair of the bridge in question. Second, that the board wrongfully neglected to erect, rebuild or repair the same. Third, that the injury to Mrs. Hough was occasioned by such wrongful neglect.
The board of chosen freeholders were clearly chargeable with the erection, rebuilding and repair of the Union street bridge over the Rockaway river. Freeholders of Sussex v. Strader, 3 Harr. 108. This duty not only required the defendants to .replace the structure across the stream with a new one, but it also required them to make the new bridge
Whether the defendants neglected to perform this duty of replacing the old structure and providing the public with a safe and convenient access thereto, was a question of fact for the jury upon the evidence.
The question as to whether the injury to Mrs. Hough was occasioned by the wrongful neglect of the defendants, was also a question for the jury.
The board was bound by the action of its committee. City of Burlington v. Dennison, 13 Vroom 165.
The verdict of the jury having settled all disputed questions of fact in favor of the plaintiff, the judgment in this case should be affirmed unless the trial judge erred in his rulings, as shown by proper exceptions allowed and sealed in this case.
The first exception is to the refusal to nonsuit. This is defective because it does not show that the precise point on which a review is sought was made by counsel and presented to the mind of the trial judge and decided by him. The only ground stated was that the plaintiff had not established a legal cause of action against the defendants. If such an objection is sustained it would impose upon the trial judge the necessity of considering every legal proposition that might arise in the ease and all the evidence therein, and if he erred the judgment would be reversed, although counsel had failed to state the grounds of objection,, so that the court might fairly consider each of them, as thus presented. Such a gen
The next exception is to the charge of the judge. This is clearly multifarious. It embraces several legal propositions, some of which are clearly unobjectionable so far as the defendants are concerned. It cannot be upheld in toto. Packard v. Railway Co., 25 Vroom 229.
The exception to the refusal to charge as stated in the third request cannot be sustained, because it assumes that there was no evidence on the point involved therein, whereas there was evidence in the case affecting this question.
The exception to the fifth refusal to charge as requested cannot be sustained, because it assumes that the bridge was completed July 29th, when there was evidence from which it might be inferred that it was not entirely completed on that date, and because actual notice of the condition of the sidewalk thereafter was not necessary, as hereinafter stated.
The exception to the sixth refusal to charge cannot be sustained, because it assumes as matter of fact that thq, river or wing walls were not part of the bridge. If they were, and there was evidence upon that point, the defendants would be bound to keep them in repair the same as any other part of the bridge.
The exception to the seventh refusal to charge cannot be sustained, because it would in effect be instructing the jury that ordering a railing to be put up, which it was not their duty to put up, would relieve the defendants in this case when the liability (if any) results from defendants not putting up some temporary warning barrier or protection while the railing was in course of construction. The duty was not necessarily to put up a railing, but to furnish plaintiff a safe and convenient access to the footwalk of the bridge, which could have been done in various ways other than by a railing. The
The refusals to charge the first, second and fourth propositions, however, involve a consideration of legal principles which, if the judge improperly refused to charge, would require the judgment in this case to be reversed.
These requests were as follows:
1. That if the approaches to the bridge were safe and convenient when it was “taken up” by the committee of the board of chosen freeholders having charge of the building of said bridge, on the 29th day of July, and they would have continued to be safe and convenient if they had not been changed by parties other than the defendants and without their knowledge, the defendants would not be responsible for the injuries received by Mrs. Hough.
2. That unless the evidence showed that the defendants had actual knowledge of the way in which the sidewalk would be filled in, the extent of the filling, the time when the filling would be done, they would not be responsible by reason of any plan which they may have contemplated, or which they may have supposed might be adopted by the town of Dover, or by the owner of the adjoining property.
4. That if the approach to the bridge, as made by defendants, was safe and convenient, though they may have contemplated a plan of filling of the sidewalk that might at some future time be adopted by the town of Dover, or by the owner of the adjoining land, and undertook to provide for such condition, they would not be responsible for the injury to Mrs. Hough, unless they had actual knowledge or notice that the work was to be done at once, or that the work was in progress, or had been completed.
In considering the questions presented, we may assume that if the duty of the defendants had been ended July 29th, when the main structure of the bridge had been finished and the roadway of the street had been graded up to meet it, the defendants would not have been liable, because the work had been left in such a condition that the sidewalks of the street
The court seems to have presented the case fully and fairly to the jury and dealt most carefully with the rights and duties of the defendants under the evidence. An examination of the charge shows that the following propositions, among others, were laid down by the trial judge:
1. That the liability of the defendants (if any) arose under the supplement to the Bridge act of March 15th, 1860 (Rev., p. 86), on account of the wrongful neglect of the defendants to rebuild or repair Union street bridge over the Rockaway river. That no liability existed in this case unless the proofs established — -first, that the defendants were chargeable by
2. That it was the duty of the defendants to provide at each side of the Rockaway river, which it spans, a safe and convenient access to the bridge for passengers by filling in, or by some other mode, and that the same is part of the bridge construction.
3. That the new bridge, being some two feet higher than the old one, required some filling or grading — some construction back of the abutment.
4. That although the bridge committee, on July 29th, examined and approved of the work done up to that time, and it then became a public work, constructed by a public corporation, and open for public use, it was still a question for the jury, if it was then completed.
5. That whether it was then completed depended on what was the plan and design either originally made or as modified July 29th.
6. That it might be inferred that it was expected that the sidewalks on Union street, if ever laid, would be laid up to and made to adjoin the raised footways on the bridge.
7. That on July 29th the committee of defendants discussed the question of these sidewalks and the necessity, if they were raised at some future time, to put a railing on the wall, and that thereupon the railing was ordered and the bill therefor paid by the defendants.
8. That it was for the jury to say whether the plan designed for access to the footways of the bridge contemplated the filling up of the sidewalk and the construction of the footway thereon to and along the wall so as to reach and give convenient access to the footway of the bridge.
9. That if such plan did not contemplate the filling by others, which the defendants were to adopt, that the defendants were not liable because they were not responsible for the construction of what was not within their plan.
11. That if the plan the committee did adopt (including the filling of the sidewalks by others) required a barrier or protection along the wall to make a safe passage, that it was the duty of the defendants to erect that barrier.
12. That it was for the jury to say, if such a duty existed, whether there was a wrongful neglect of that duty.
13. That if defendants’ plan contemplated a sidewalk filled in by others, and a footway along the dangerous edge of this wall to the footway of the bridge, a duty devolved on the freeholders to take proper and reasonable precaution to have notice of that filling in which they were to adopt as part of their plan and to erect some temporary barrier until the railing which they had ordered should b¿ erected.
14. That it was for the jury to say if defendants were wrongfully neglectful in not furnishing some temporary barrier or protection pending the erection of the railing.
The propositions laid down by the judge seem to have been entirely correct. I have already cited the cases showing that it was the duty of the defendants to make safe and convenient access for the public from the sidewalk to the footway of the bridge, and that it was their duty, even at common law, to make and repair the highways at the ends of the bridge, if necessary for this purpose.
It has been held that it is not necessary that actual notice should have been given or that persons liable for the keeping of a bridge in repair should have actual knowledge of the dangerous condition of the access to the bridge. The rule laid down is that if, by the exercise of ordinary and due diligence and care, they would have had such knowledge, it is sufficient. In Reed v. Northfield, 13 Pick 94, 98, it is said that “ The evidence of notice to the public of the dilapida
See, also, 2 Beach Pub. Corp., § 1523, and cases there cited; Mayor, &c., of New York v. Sheffield, 4 Wall. 189—196; District of Columbia v. Woodbury, 136 U. S. 450, tit. “Highway.” Notice liability for defective highway. 9 Am. & Eng. Encycl. L. 401-407 and cases there cited, tit. “Bridges.” Action, damages, notice, reasonable care, railings. 2 Am. & Eng. Encycl. L. 558-562 and cases cited; How v. City of Lowell, 101 Mass. 99; Donaldson v. City of Boston, 16 Gray 508. Originally, the question whether a municipality or its officers used reasonable diligence to discover a defect is for the jury. 2 Beach Pub. Corp., § 1521, and cases cited.
The open and notorious existence of an obstruction on a sidewalk for five days was considered as a sufficient time to charge the authorities with notice thereof. Kunz v. City of Troy, 104 N. Y. 344. In this case the court says: “The negligence, if any, on the part of the city in the present case does not arise from any affirmative act, but from an alleged omission to exercise proper care and supervision and permitting the counter, unlawfully placed on the sidewalk by McLaughlin, to remain there after notice of the obstruction. * * * The city, however, was not responsible for the original wrong. Its culpability, if any, as we have said, consists in not interfering to cause the removal of the obstruction after due notice of its existence. It is not claimed that
See, also, Mersey Docks Trustees v. Gibbs et al., 11 H. L. Cas. 686.
It is a question for the jury whether the county has been negligent in constructing an approach to a bridge. Moreland v. Mitchell County, 40 Iowa 394. These approaches must be constructed so as to be reasonably safe for passengers by night or day, or action lies. Baltimore and Ohio Railroad Co. v. Boteler, 38 Md. 568. Also, see other cases cited in 2 Am. & Eng. Encycl. L. 560, 561; and see cases cited in note to § 759, 1 Beach Pub. Corp. 771.
It has been held that a county may, by adoption, make public a bridge constructed by individuals, and when it is thus made public, the county becomes bound to keep it in repair. State, ex rel. Roundtree, v. Board of Commissioners of Gibson County, 80 Ind. 478. See, also, Ell. Roads and S. (ed. 1890), p. 23, and cases there cited. The principle of this decision applies to the approaches as well as the main structure.
The most important point presented by the defendants against their liability in this case was their contention that the bridge and its approaches were completed on July 29th and left in such condition that this accident could not have happened if third parties had not thereafter interfered with the then existing condition and created the danger, as they claim, by raising the sidewalk on Union street to a level with the coping on the wing walls of the bridge. If we assume that the facts of the case warrant these conclusions, there would be no liability on the part of the defendants. The difficulty, however, with this contention is that the jury have found a different state of facts upon evidence properly submitted to them. The bridge was not completed July 29th. The main structure and the roadway approaches were completed, but the access to the' footways of the bridge had not been completed. The plan of the committee of the defendants contemplated a structure with a sidewalk, filled in by others, protected by a railing erected by the defendants on the wing walls of the bridge. The defendants were in the performance of that duty when the plaintiff was injured. The neglect of the defendants consisted in not providing a temporary barrier after October 10th, when the sidewalk had been raised and the danger became notoriously apparent. The existence of this danger for over two weeks charged them with notice, the same as if they had been directly notified of its existence.
The judgment below should be affirmed.
Dissenting Opinion
(dissenting). The facts in this case, to which the law is to be applied, are few and undisputed. They are these : The board of freeholders, the plaintiff in error, erected a county bridge over the Rockaway river,
' at the time of constructing their bridge, put up a wing wall across the dangerous part of the sidewalk in question, which was confessedly an adequate safeguard as things then were. The bridge, including the sidewalk, had been built by contract, and having been examined by the building committee, and being deemed satisfactory, was approved and paid for. In a few days after this a pi'oposition was brought before the building committee to put an iron railing on the top of the wing wall above mentioned, and the witness who testified upon this subject, and who was one of the committee and the only witness in this respect, thus narrated the transaction, viz.: “ Our committee, some of them, thought that we did not need any railing on it; I told them I thought we had better have one, because at some future time it might be graded and it would be necessary; at that time it was not necessary.” Under these circumstances a railing was ordered. The mechanic thus employed neglected to put it up for a few weeks, and in the interim the town of Dover, or a landowner, filled in the sidewalk in question to a level with the top of the wing wall. By this means, of course, the sidewalk was left without any safeguard at its terminus by the bridge, and the plaintiff, crossing the bridge by night, fell from the sidewalk down the steep already mentioned, and, being injured, brought the present action.
That the plaintiff is entitled to be indemnified for her damages by some one is certain, but the question is whether the plaintiff in error is that responsible person.
My examination has led me to the conclusion that it is plain that this suit, as -it is now laid, will not lie. Every ground upon which it is claimed it can be placed- seems to me
In my opinion this consideration alone negatives the responsibility of the plaintiff in error for the damages sustained by the defendants in error. I cannot think that it has even been held in any decision that a person is responsible because he has merely refused or neglected to perform an act which he was under no legal obligation to perform.
At the trial the justice who presided instructed the jury .that a verdict against the county could rest but on a single ground. The charge left no doubt upon that subject. It will be remembered that the bridge and sidewalk were left by the plaintiff in error in a perfectly safe condition, and that the town raised the sidewalk so as to occasion the change that proved so disastrous to the plaintiff. The trial justice informed the jury that the officers of the county, as appeared from the evidence, had no information or knowledge of the action of the municipality in this respect. After adverting to the testimony that the freeholders, in view of a probable
It will be observed that the theory at the trial was that if the jury believed that it was within the contemplation of the freeholders that the sidewalks would eventually be filled up by the town authorities, and if, to provide for that eventuality, they ordered the railing in question to be put up, and if they were negligent in effecting such erection, then they would be liable for the injuries sustained by the defendants in error.
I have-altogether failed to see how the foregoing proposition can he brought to harmonize with legal principles that have always been regarded as indubitable.
We have already seen that after the freeholders had properly built their bridge and had properly connected it with the roadbed and sidewalks, and had left these works in a safe condition, they had fully discharged their legal duty. They were under no obligation to provide at that time for any change of condition that might arise in the future from the action of other persons. It follows, of necessity, that the project of putting up a railing was an undertaking absolutely
In fine, on this head, my conclusion is, that when those agents of the county, in view of the probable filling up of the sidewalk in question in the future by this municipality, resolved to put up a railing on the wing wall referred to, they merely assumed to do that which at the time they were not bound to do, and that, consequently, such voluntary assumption could be either abandoned or neglected with entire impunity.
Nor does it seem that the result would be changed if we were to assume that the project of the construction of the railing in question became a legal duty on the part of the plaintiff in error.
In view of this rule, and it is incontestable, it appears to be plain that the present action is not maintainable. Assuming that the duty in question was neglected by these freeholders, still it is a non sequitur that the county is responsible for the hurt sustained by the defendant in error. The freeholders had left their work in a safe condition, and they, therefore, plainly were not the proximate cause of the accident that occurred. The municipality stood in that attitude, for it raised the sidewalk, and thereby made the place dangerous. But for the intervention of the authorities of the town, the mischief, complained of would not have happened. The town, beyond all question, was the immediate causa causans of the dangerous state of this street. The freeholders had left it in a safe condition and these municipal authorities then put it into an unsafe condition, and the freeholders did nothing to lead to such conduct.
The inquiry, therefore, supervenes, how are the freeholders to be connected with this wrongdoing ? Most assuredly only
It will be observed that the question is not whether the elevation of the street should have been anticipated by the freeholders, but whether, as reasonable men, they should have anticipated that it would be done in such a manner as to convert it into a public nuisance, dangerous to every one who, by night, should use it. It is plain that the municipal authorities, in leaving one of the public thoroughfares in this grossly perilous state, committed an indictable offence, and, consequently, how can it be contended that the freeholders, as reasonable men, were bound to infer that such a crime would be committed ? It would seem to be undeniable that it was the duty of the municipality, if it elevated its street in the manner described, to have given notice of its intention to the officers of the county, or, in the absence of such notification, to have provided a temporary safeguard against the danger itself had created. Was it in the natural, sequence of affairs that it would neglect this duty, and thereby perpetrate a misdemeanor of a grave character ? Such misconduct as this did not “follow in the ordinary course of events” from the neglect of duty on the part of the freeholders (admitting such duty and such neglect existed), nor could the freeholders have anticipated any such occurrence. Consequently, according to the legal rule already stated, no liability on the side of the county can result by reason of the injury to the defendant in error that forms the basis of this suit.
But, again, on the admission that the plaintiff in error was legally bound to put up the railing in question, and that it was negligent in the performance .of that duty, nevertheless this action will not lie, as it was not the proximate cause of the injury. It was not enough to show that this negligence was, in a distant degree, the cause of the damage to the plaintiffs below, for, in order to validate this judgment, it must appear that it was the proximate cause. But this, it
In my judgment, an affirmance of this judgment must proceed on the adoption of one or more of the three following propositions, viz.: First, that the non-performance of a gratuitous intention may, per se, lay the ground of an action at law; second, that a negligent person may be charged with damages that are not the “natural” effects of-his delinquency; and, third, that such delinquency will, in law, be deemed the proximate cause of the ensuing loss, although such loss was directly caused by the intervention of a culpable and efficient agency.
For affirmance — The Chancellor, Abbett, Dixon, Lippincott, Eeed, Van Syckel, Krueger, Bogert. 8.
For -reversal — The Chief Justice, Depue, Brown, Smith. 4.