92 N.J.L. 8 | N.J. | 1918
The opinion of the court was delivered by
The plaintiff, a boy thirteen years of age, was riding on a two-seated motorcycle driven by another young man. They were traveling on the Hudson county boulevard at night, and, in the darkness, the motorcycle struck a depression which the driver failed to observe, with the result that the plaintiff was thrown off the cycle, his right foot was caught in the rear wheel, and the leg broken above the ankle; the fracture being a compound one. The depression in the road was due to an excavation made therein by the defendant company for the purpose of laying a water pipe under the surface of the highway at that point. The proofs justified the conclusion that, after the pipe had been laid the defendant filled up the opening and caused the earth to be rammed as solidly as possible, leaving this part of the
It also appeared in the case that this excavation was made by the defendant under permission granted to it by the public authorities having charge of this highway; and the first ground upon which we were asked to set aside the verdict is that after the company once restored the highway to its normal condition, it was charged with no further responsibility, and that the duty of taking care of any subsidence which should afterward occur, rested solely upon the public authorities. Assuming that, because this work was done with the consent of the public authorities the burden rested upon them to see that the highway, after the work was done, was maintained in a safe and proper condition, that fact does not, we think, relieve the defendant company from responsibility. The work done by it was for its sole use and benefit. Although it was lawfully done, it was in derogation of the public right, and ihe burden rested upon it of restoring the highway to its normal condition, and to take care of if, so far as the public rigids are concerned, until that restoration was permanent. This being so, the fact that the same duty rested upon the public authorities (if such be the fact) does not affect the primary liability of the company. Brady v. Public Service Ry. Co., 80 N. J. L. 471.
The obligation to make a permanent restoration of the highway being imposed upon the defendant company, it was hound to use reasonable care, during the process of restoration, to
We are further asked to set this verdict aside upon the ground that the damages awarded were excessive. No good purpose will be served by an analysis of the plaintiff’s injuries, and of the pain and suffering produced thereby. It is enough to say that, after a full consideration of this branch of the case, the award seems to us to be a reasonable one.
The rule to show cause will be discharged.