Lorentz v. Pub. Serv. Ry. Co.

• Citation: 134 A. 818
• Decision Date: 18 October 1926
• Docket Number: No. 7.,7.
• Parties: LORENTZ v. PUBLIC SERVICE RY. CO.
• Court: New Jersey Supreme Court

134 A. 818

LORENTZ

v. PUBLIC SERVICE RY. CO.

No. 7.

Court of Errors and Appeals of New Jersey.

Oct. 18, 1926.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Edith Lorentz, who sues, etc., against the Public Service Railway Company. From a judgment for plaintiff, defendant appeals. Reversed for a new trial.

Leonard J. Tynan and Joseph Coult, both of Newark, for appellant.

Charles Wagner, of Elizabeth (Abe J. David, of Elizabeth, on the brief), for respondent.

PARKER, J. The plaintiff, a girl 12 years of age, was injured on the night of December 1, 1920, while riding as a passenger in an automobile driven by her father by its collision with one of the columns of the elevated structure maintained by the defendant on Central avenue in Jersey City. She brought suit, and at the trial the case, over objection and exception, was submitted to the jury, who found in her favor, and. defendant prosecutes this appeal, alleging error in the refusal of the trial court to nonsuit, and its refusal to direct a verdict for defendant. We pass the refusal to nonsuit, for the reason that when the plaintiff rested, the rights of defendant to maintain the structure in question were not supported by any evidence except the fact that the structure had been many years in use.

The complaint charged generally that defendant was in possession of and using the elevated structure, and that it was supported on columns set in the roadway of Central avenue in such wise as to interfere with and impede free public passage; that the structure darkened the space underneath it; that defendant had assumed the duty of lighting beneath it (on this point the proof wholly failed); that defendant failed to have a suitable light at the point where the accident occurred; that by reason of these several features the structure was a nuisance and dangerous to travelers on the highway; and that on the date in question, by reason of the premises, the plaintiff being driven in a southerly direction was injured by the automobile striking one of the columns. The second count repeated these general allegations, alleging for a specific act of negligence that defendant had allowed the column to become dirty so that it could not readily be seen; the third count alleged inadequate and insufficient lighting.

The elevated structure had been in place since 1889. The building of such a structure was authorized by a statute of 1886 (P. L. p. 126; 4 C. S. pp. 4993-4995, §§ 12-15), subject to certain conditions precedent, the performance of which was not drawn in question.

At the trial, plaintiff's counsel admitted that "the structure was there lawfully under the permission of the municipal authorities"; and the ordinance of Jersey City was duly admitted in evidence. There seems to be no provision in either the statute or the ordinance requiring the company to light the structure at night, and it was on a dark, rainy, misty night that the accident occurred. The character of the structure and the placing of the columns are specified in section 2 of the ordinance, and no claim is made that the company varied in any substantial way from these requirements. The map introduced at the trial shows that the elevated structure entered Central avenue from the east, curving toward the south until its direction coincided with that of the avenue; and from that point southward are two parallel rows of columns. Plaintiff's father, driving the car southward, saw one column at his left, and presently ran into one on his right, which he had failed to see.

From what has been said it should be sufficiently obvious that the structure in question was a lawful one, sanctioned by legislative and municipal authority. It is elementary, of course, that any unlawful obstruction of the highway is prima facie a nuisance and that the party responsible for it is liable in damages to one injured thereby. This was the theory of the leading case of Durant v. Palmer, 29 N. J. Law, 544. But it is equally well settled that the Legislature may legalize what would otherwise be a nuisance. Hinchman v. Paterson Horse R. Co., 17 N. J. Eq. 75, 86 Am. Dec. 252; Halsey v. Rapid Transit Co., 47 N. J. Eq. 380, 20 A. 859; Paterson v. Grundy, 51 N. J. Eq. 213, 26 A. 788; Beseman v. Penna. R. R. Co., 50 N. J. Law, at page 240, 13 A. 164; State v. Lackawanna R. Co., 84 N. J. Law, 289, 86 A. 386; State v. Riggs, 91 N. J. Law, 456, 106 A. 216, appeal dismissed in this court 92 N. J. Law, 575, 106 A. 467; Garrett v. State, 49 N. J. Law, 94, 693, 7 A. 29, 60 Am. St. Rep. 592; Simmons v. Paterson, 60 N. J. Eq. 385, 45 A. 995, 48 L. R. A. 717, 83 Am. St. Rep. 642; State v. Erie R. Co., 84 N. J. Law, 661, 87 A. 141, 46 L. R. A. (N. S.) 117.

It is significant that neither in the trial court nor in this court has the industry of counsel produced one decision in which recovery was had because of collision with a legalized permanent obstruction in a highway, apart from some special misuse of such structure. Our own decisions on this phase are instructive as indicating the general rule by the exceptions to it. Thus, in Suburban Electric Co. v. Nugent, 58 N. J. Law, 658, 34 A. 1069, 32 L. R. A. 700, the ground of recovery was not the electric pole, but some uninsulated wire left where deceased could touch it.

In Morhart v. Street Ry. Co., 64 N. J. Law, 236, 45 A. 812, a line of hose was laid across the street and unguarded.

In Smith v. Atlantic City R. Co., 66 N. J. Law, 307, 49 A. 547, a railway gate, a lawful obstruction to passage, was lowered upon plaintiff as she passed.

In Sutphen v. Hedden, 67 N. J. Law, 324, 51 A. 721, the fence was insufficiently maintained and was blown down.

In Record v. Pennsylvania R. Co., 76 N. J. Law, 800, 72 A. 62, another railroad gate case, the gates were unlighted, in violation either of law or recognized custom, and of course they were in any event a temporary obstruction of which notice would naturally be given by lights at night.

In Opdycke v. Public Service Ry. Co., 78 N. J. Law, 576, 76 A. 1032, 29 L. R. A. (N. S.) 71, the defendant utilized part of the roadway Itself to build what amounted to a trap for stray horses; which this court characterized as a nuisance.

In Geise v. Mercer Bottling Co., 87 N. J. Law, 224, 94 A. 24, the defendant traction corporation allowed a hole to become worn in the pavement, which caused an automobile truck to run wild.

In Symes v. Morris County Traction Co., 1 Misc. Rep. 525,¹ a pole originally lawful had broken and hung over the road so that plaintiff's intestate, driving a truck, ran into it.

In Cochran v. Public Service Electric Co., 97 N. J. Law, 480, 117 A. 620, the report does not seem to show the disposition of the case in the trial court, but in fact there was a nonsuit, which we sustained on the ground of nonprivity of contract. The opinion intimates that the safety isle in the street was a nuisance unless lighted, doubtless because no statutory authority for...