Fredericks v. Town of Dover

• Citation: 125 N.J.L. 288,15 A.2d 784
• Decision Date: 10 October 1940
• Docket Number: No. 39.,39.
• Parties: FREDERICKS et al. v. TOWN OF DOVER.
• Court: New Jersey Supreme Court

15 A.2d 784

125 N.J.L. 288

FREDERICKS et al.

v. TOWN OF DOVER.

No. 39.

Court of Errors and Appeals of New Jersey.

Oct. 10, 1940.

Syllabus by the Court.

1. The law is well settled that any obstruction or erection in a public highway which interferes with the rights of a person lawfully passing thereon amounts to a common or public nuisance for which a municipality is charged with responsibility if it was an active agent or instrument in the creation of the perilous condition.

2. Under our statute, R.S. 2:24-2, N.J. S.A. 2:24-2, the accrual of the cause of action is the prescribed injurious event from which the period of limitation is to be computed. By the accrual of the cause of action is meant the right to institute and maintain a suit.

3. One is liable for a nuisance on the ground, either that he has purposely or negligently created it or that he continues it, and the creator of the nuisance puts it in the power of others to continue it it is a fundamental principle that he that does the first wrong shall answer for all consequential damage.

PERSKIE, Justice, and WOLFSKEIL, Judge, dissenting.

Appeal from Supreme Court, Morris Circuit.

Action by Dorothy Fredericks and Samuel Fredericks, her husband, against the Town of Dover to recover for injuries sustained by Dorothy Fredericks when she fell on a metal covering of a storm gutter located within the street lines in the town of Dover, and for damages sustained by Samuel Fredericks as a result of his wife's injuries. From an adverse judgment, the defendant appeals.

Judgment affirmed.

Paul Colvin, of Dover, for plaintiffs-respondents.

Samuel C. Meyerson, of Dover, for defendant-appellant.

CAMPBELL, Chancellor.

This is an appeal from a judgment in favor of the plaintiffs-respondents and against the defendant-appellant entered on a verdict of a jury in an action in negligence to recover for injuries sustained by the respondent, Dorothy Fredericks, when she fell on a metal covering of a storm gutter located within the street lines of Mount Hope Avenue, in the Town of Dover, and for damages of her husband, Samuel Fredericks, the other plaintiff-respondent, as the result of his wife's injuries.

The complaint charges that the Town of Dover, the appellant, owed the respondent, Dorothy Fredericks, a duty to refrain from active wrongdoing, and that this duty was violated when the appellant negligently constructed a sidewalk, road, and gutter in the location in question in such a manner as to constitute active wrongdoing on its part, in that it placed a metal covering over the gutter, constituting an extension of the sidewalk, at a dangerous pitch and that the same was extremely smooth so that it constituted a hazard to persons walking thereon.

The answer set up a general denial and three separate defenses: (1) the statute of limitations, (2) contributory negligence, (3) that the duty of maintaining the road was solely that of the County of Morris.

Under the respondents' theory it became essential that they prove the hazard or danger complained of was the result of a failure in the design or plan or the wrongful construction of the sidewalk, road, and gutter, rendering their use dangerous and likely to cause harm to persons, exercising proper care, lawfully using the sidewalk, road, and gutter, and that the appellant was the active agent or instrument in the creation of this perilous condition. Robinson v. Ocean Township, 123 N.J.L. 525, 528, 9 A.2d 300; Alias v. Rumson, 115 N.J.L. 593, 596, 181 A. 175, 102 A.L.R. 648.

The street improvement in question was erected in 1924, by the appellant and under its supervision. A properly qualified engineer, testifying on behalf of the respondent, testified that, in his opinion, the construction of the gutter and cover in the form in which it was erected and existed violated good engineering practice. He based this conclusion upon two reasons: first, that there was a grade of one inch per foot in the cover, resulting in a dangerous pitch, for use by pedestrians, and secondly, that the plate was a smooth type, when good engineering practice required that a corrugated or multigroove plate be used, stating that the advantage of the corrugated or multigroove plate is that it is much more difficult to slip on than the ordinary smooth type plate used in this construction. He testified that the pitch in the plate could have been avoided in the original construction by raising the pitch of the sidewalk, entailing only a small additional expense.

The witnesses for the appellant testified that this particular cover and gutter were properly constructed, and as to the type of plate used, the Town Engineer conceded that the corrugated or multigroove plate affords a greater protection, but that both types are slippery under certain conditions.

The trial court submitted the issue to the jury and charged that the municipality could only be held liable if the plaintiff had made out a case of active negligence. The jury returned a verdict in favor of the respondents and against the appellant and the judgment under review was entered thereon.

The first point made by the appellant is that, at the time of the accident, and for more than ten years prior thereto, the street in question, including the place where the accident occurred, was a county road under the sole jurisdiction, maintenance and ownership of the County of Morris, therefore the suit is barred by the statute of limitations. The appellant argues that in order to hold it responsible three elements must be shown; (1) that the original construction...