Bowlby v. Inhabitants of Town of Phillipsburg

• Decision Date: 11 November 1912
• Parties: BOWLBY v. INHABITANTS OF TOWN OF PHILLIPSBURG.
• Court: New Jersey Supreme Court

84 A. 1051

83 N.J.L. 377

BOWLBY

v. INHABITANTS OF TOWN OFPHILLIPSBURG.

Supreme Court of New Jersey.

Nov. 11, 1912.

(Syllabus by the Court.)

Action by Elizabeth Bowlby, executrix, against the inhabitants of the Town of Phillipsburg. Heard on rule to show cause. Rule made absolute.

Argued June term, 1912, before GUM-MERE, C. J., and GARRISON and BERGEN, JJ.

J. I. Blair Reiley, of Phillipsburg, for the motion.

S. C. Smith, of Phillipsburg, opposed.

BERGEN, J. This action was brought to recover damages for an alleged alteration of a street grade in front of plaintiff's premises, in the town of Phillipsburg. The plaintiff had a verdict, and the defendant was allowed a rule to show cause why it should not be set aside. While numerous reasons are urged in support of the rule, it is only necessary to consider one of them, which is that, while the street had been altered in grade to the property line of the plaintiff, no alteration of grade had been made in front of plaintiff's property.

The trial court submitted the case to the jury under the following instructions: "In this case, before you can find for the plaintiff at all, you must find that the grade of the street in front of the property in question has been altered by work actually done under the ordinance, and, if you find as a fact that the grade of the street has not been altered by work actually done on the street, then your verdict must be for the defendant." Thus the law of the case as laid down by the trial court required the jury to find, as a matter of fact, that the grade of the street had been altered in front of the plaintiffs property before they could find in her favor. Whether these instructions express the true legal rule or not, it became the law of the case, and, in order to sustain a verdict on a rule to show cause, the evidence must show a case within the legal rules upon which the court submits the case to the jury. Sensfelder v. Stokes, 69 N. J. Law, 86, 54 Atl. 517; Cook, Adm'r, v. American Gunpowder Co., 70 N. J. Law, 65, 56 Atl. 114.

There is no evidence in this case which justified the jury in finding that the grade of the street in front of the plaintiff's property had been changed or altered. The plaintiff was a witness and testified that some repairs had been made to the street in front of her place where the dirt had washed out, and, when she was asked whether there had been any work done on the street, her reply was, "The steam roller was over there; that it went...