137 A. 570 | N.J. | 1927
This is an appeal from a judgment entered upon a nonsuit in favor of the defendant, Broadway Theatre Company, in an action brought by Alex. Zwickl to recover compensation for injuries received by him, on February 12th, 1926, at two P.M., from a fall upon the sidewalk in front of the defendant's property, caused by slipping upon ice which formed there.
The theory of the plaintiff's case was that the presence of the ice upon the sidewalk was due to the wrongful act or neglect of the defendant, and that, consequently, it was responsible for the injuries received by the plaintiff which were the direct result of such wrongful act or neglect.
At the trial the evidence tended to show (among other things to be stated in the course of this opinion) that the defendant had constructed upon its building a pipe or leader designed to gather together the rain water, or the water resulting from melting snow, which fell upon the roof, and to discharge it through such pipe or leader, which ran down the front of the building, into a covered drain which was laid below the surface of the sidewalk, and thence into the gutter of the street; that this pipe or leader had been permitted by the defendant to become broken and out of repair, in that it did not reach and connect with the drain under the sidewalk, so that the water from the melting snow on the roof, instead of passing down through the leader and drain to the gutter, ran down outside thereof in large quantities and spread upon the sidewalk; and that the ice upon which the plaintiff slipped was formed by the freezing of the water which escaped from the leader by reason of its impaired condition.
The trial judge nonsuited the plaintiff on the ground that the ice had been caused by the diversion of surface waters for which there was no liability upon a landowner.
The learned trial judge considered that he was bound to grant the motion to nonsuit by reason of the case of Jessup v.Bamford Brothers Co.,
Of course, the defendant was under no legal obligation to construct such pipe and drain for the purpose of carrying the water into the gutter of the street (Sewall v. Fox,
The present case is exactly like the case of Cavanagh v.Hoboken Land, c., Co., supra, except that in the Cavanagh case the plaintiff knew that the defendant was allowing the water to escape from the defective pipe and freeze upon the sidewalk, and in the case at bar the plaintiff denied such knowledge. All the other features are there — the drain under the sidewalk, the leader connecting with it just above the ground, the break at the point of connection and the escaping water. The reversal of the judgment for the plaintiff in the Cavanagh case was put upon the ground that when a landowner abandoned the plan of carrying the water under the sidewalk, a passer-by who knows of such abandonment, or has notice of it, cannot recover if hurt by reason of such abandonment. It follows therefrom by necessary inference that where, as in the instant case, the evidence tends to show *608 that the pedestrian had no such notice or knowledge, a jury question is presented.
The judgment will be reversed and a venire de novo awarded.
For affirmance — None.
For reversal — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, KALISCH, BLACK, KATZENBACH, CAMPBELL, LLOYD, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, JJ. 14.