Bisbing v. Asbury Park

Decision Date14 November 1910
Citation80 N.J.L. 416,78 A. 196
PartiesBISBING v. ASBURY PARK.
CourtNew Jersey Supreme Court

Syllabus by the Court.

Error to Supreme Court.

Action by Ida Virginia Bisbing against Asbury Park. Judgment for plaintiff, and defendant brings error. Reversed.

Patterson & Rhoine, for plaintiff in error.

Duraud, Ivins & Carton, for defendant in error.

VOORIIEES, J. This writ of error removes a judgment entered for the plaintiff in Monmouth county circuit court, in an action brought to recover damages for personal injuries sustained by the plaintiff alleged to be in consequence of the negligence of the servants and agents of the city of Asbury Park. The case was tried before the court without a jury. It appeared that on the evening of the 30th day of August, 1906, the plaintiff was at a carnival or celebration in progress in the streets of the city of Asbury Park, and, for the purpose of viewing the pageant, had gone upon the board walk, extending along the ocean, between 7 and 8 o'clock and walked up to about Seventh avenue, and then turned to retrace her steps. The crowd was then "immense," as she expresses it. making it very difficult to walk, so she decided to leave the board walk, and, when near the corner of Second avenue, turned into a narrower brick walk, some 22 feet in width, leading at right angles into Ocean avenue. North of this brick walk or way were located a group of bathhouses, and on the south side of it was a grass plot, on the same level with the walk. In the grass plot, about 2 1/2 feet southerly from the walk, there was maintained by the city an upright water pipe 3 or 4 inches in height, and a lateral pipe, which near the upright pipe was exposed; there being a hole or depression in the ground about 6 inches deep, and some 2 feet in diameter.

The plaintiff thus describes the accident: "I hadn't gone very far before I felt my foot go in that hole. I caught it. It seemed to catch between something and threw me to the ground." She also testified that there was so great a crowd that she and her sisters, who were with her, could not walk together, but were making their way through it as best they could, and that there were just as many people on the grass as on the walk, and she did not realize that she was walking on the grass. The grounds were illuminated by electric lights. There was no railing or other barrier separating the crosswalk from the grass plot and no inclosure or protection about the pipes. The defendant's negligence is thus set forth in the declaration: "That the defendant, a municipal corporation, was clothed with the powers and subject to the duty by and through its public grounds commission, among other things, of keeping sound, safe, and serviceable for public use all the parks and public places except the streets and avenues in said city of Asbury Park, and particularly the public place known as the beach front lying east of Ocean avenue. * * * Yet the defendant did not keep said public place known as the beach front * * * sound, safe, and serviceable for public use and travel," etc.

It is not controverted, and could not well be under the law as expounded in this state, since the year 1840, that, in the absence of statute, an action will not lie against a municipal corporation at the instance of an individual who has sustained special damage in consequence of the neglect of such corporation in the performance of a public duty. Freeholders of Sussex v. Strader, 18 N. J. Law, 108, 35 Am. Dec. 530; Livermore v. Freeholders, 29 N. J. Law, 245, affirmed 31 N. J. Law, 507; Pray v. Jersey City, 32 N. J. Law, 394; Wild v. Paterson, 47 N. J. Law, 406, 1 Atl. 490; Carter v. Rahway, 55 N. J. Law, 177, 26 Atl. 96, affirmed 57 N. J. Law, 196, 30 Atl. 863; Paterson v. Erie Railroad, 75 Atl. 922. The plaintiff, however, seeks to bring herself within an exception to this general rule and argues that the negligent act was committed by the city, not in the discharge of a strictly public duty, but while holding and dealing with the property, whereon the neglected dangerous condition existed, as its own and for its own benefit, by receiving income therefrom, just as a private owner would lease his property and receive the rents therefrom. It is contended by the plaintiff that when a municipal corporation so deals with its property—that is, as its own, as distinguished from the property which it holds strictly for public benefit—the law discriminates between negligent acts done in the discharge of a public duty wherein no liability to the corporation will attach, and acts done, not in the performance of a public function, but in what has been called, by way of distinction and for lack of a better designation, its private capacity for which an action may be maintained against the municipality.

The principle here invoked has authority in several well-considered cases, among which are Bailey v. Mayor, etc., of New York, 3 Hill (N. Y.) 531, 38 Am. Dec. 669; Western Savings Fund Society v. Philadelphia, 31 Pa. 185; Scott v. Mayor of Manchester, 3 H. & N. 204; Oliver v. Worcester, 102 Mass. 489, 3 Am. Rep. 485; and Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332. In the last cited case the opinion by Chief Justice Gray is most instructive, and in it he has collected and critically reviewed all the cases, both English and American, on the subject of public liability for negligent acts. The exception above urged finds some recognition in passing allusions to it in at least two cases in our Supreme Court. Pray v. Mayor, etc., of Jersey City, supra, and Jersey City v. Kiernan, 50 N. J. Law, 246, 13 Atl. 170.

In order to apply this distinction to the present case, the plaintiff has shown that the accident occurred upon lands acquired by the city of Asbury Park by purchase from James A. Bradley by deed of April 4, 1903. This deed conveyed a strip of land bordering on the ocean, together with the board walk, piers, pavilions, etc. The city was enabled to accept the conveyance and acquire the property by virtue of an act of the Legislature of 1900, entitled "An act to authorize cities bordering on the Atlantic Ocean to purchase lands in any such city bordering on the ocean and adjacent lands thereto in such city, for public purposes and to improve the same and to issue bonds for such purposes." P. L. 1900, p. 285, and the several amendments to said act, passed in 1002 and 1904 (P. L. 1002, p. 805; P. L. 1004, p. 100). The city in the deed covenanted that the lands were to be used by the city for the purposes set forth in the act and for such other purposes and uses as might be then or thereafter authorized by law.

An examination and construction of the enabling act are necessary, not only to characterize the lands thus acquired, but as well to determine whether the neglect of the municipal agents arose by the nonperformance of a public duty. The first section of the act authorizes the acquisition by purchase or condemnation of lands bordering on the ocean for "public purposes and for places of resort for public health and for recreation, and to improve the same." A bond issue is sanctioned to provide the funds. By the second section the city is required, after acquiring such lands, to establish a "Public Grounds Commission" consisting of three commissioners with three years' terms, to be appointed by the mayor and confirmed by the governing body, to serve without compensation. This commission, by section 3, is given the entire supervision and...

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