Murphy v. Mayor and Council of Borough of Atl. Highlands
| Decision Date | 23 February 1909 |
| Parties | MURPHY v. MAYOR AND COUNCIL OF BOROUGH OF ATLANTIC HIGHLANDS. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Action by Winifred Murphy against the Mayor and Council of the Borough of Atlantic Highlands. Verdict for plaintiff. Rule to show cause discharged.
Argued before GUMMERE, C. J., and SWAYZE and TRENCHARD, JJ.
Durand, Ivins & Carton, for the rule.
Samuel A. Patterson, opposed.
This was an action brought by the plaintiff to recover damages for the flooding of her cellar at Atlantic Highlands with sewage, the flooding being the result of a stoppage in one of the sewer pipes of the borough. The ground of liability set out in the declaration is that the borough negligently permitted the sewage pipe to become stopped. The evidence in the case does not support such a charge. The trial of the case, however, was conducted by counsel on both sides, as well as by the court, on the theory that the liability, if it existed, was due to the failure of the borough to remove the clog in the pipe within a reasonable time. This being so, the variance between the allegata and probata should not be permitted to defeat the result of the trial. An amendment of the declaration will be allowed to make it conform to the proofs.
On the proofs submitted it was for the jury to say whether the borough acted with reasonable promptness in the removal of the stoppage in the sewer pipe after being notified by the plaintiff of the condition of affairs. The jury found this issue in favor of the plaintiff, and we cannot say that its verdict is against the preponderance of the evidence. Its neglect to perform this duty rendered the municipality liable for the loss sustained by the plaintiff by reason thereof. Jersey City v. Kiernan, 50 N. J. Law, 246, 13 Atl. 170.
In charging the jury as to the measure of damages in case their verdict should be for the plaintiff, the court instructed them that she should be allowed for whatever damage was done her property by the discharge of sewage in her cellar, and whatever expense she was put to in order to clean out the cellar. This was probably wrong, for it is fair to conclude that a considerable quantity of the damage resulting from the escape of the sewage occurred before it would have been possible for the borough, in the exercise of reasonable promptness, to have removed the stoppage from the pipe, and it would seem that all the plaintiff should have recovered was the...
To continue reading
Request your trial
-
Kelley v. Curtiss
...(E. & A.1894); Hart v. Board of Chosen Freeholders of Union, 57 N.J.L. 90, 29 A. 490 (Sup.Ct. 1894); Murphy v. Borough of Atlantic Highlands, 77 N.J.L. 452, 76 A. 1073 (Sup.Ct.1909); Bisbing v. Asbury Park, 80 N.J.L. 416, 78 A. 196, 33 L.R.A., N.S., 523 (E. & A.1910); Caruso v. Town of Mont......
-
Cloyes v. Delaware Tp., A--269
......Borough of Rumson, 115 N.J.L. 593, 181 A. 175, 102 A.L.R. ...Mayor, etc., of Jersey City, 46 N.J.L. 157, 160 (E. & ...28, 56 A. 141 (Sup.Ct.1903); Murphy v. Borough of Atlantic Highlands, 77 N.J.L. 452, ......
-
Cloyes v. Delaware Tp.
...456, 35 A. 1131 (E. & A. 1894); Harrington v. Woodbridge Tp., 70 N.J.L. 28, 56 A. 141 (Sup.Ct.1903); Murphy v. Borough of Atlantic Highlands, 77 N.J.L. 452, 76 A. 1073 (Sup.Ct.1909); Garrison v. Borough of Fort Lee, 92 N.J.L. 566, 106 A. 381 (E. & A.1919); Callan v. City of Passaic, 104 N.J......
-
Clay v. City of Jersey City
...It is defendant's contention that any such award in money damages would be speculative. Defendant relies upon Murphy v. Atlantic Highlands, 77 N.J.L. 452, 76 A. 1073 (Sup.Ct.1909). I am satisfied Murphy is not In the instant case defendant's liability is based not alone upon failure to repa......