Braelow v. Klein

• Decision Date: 19 May 1924
• Parties: BRAELOW et al. v. KLEIN.
• Court: New Jersey Supreme Court

125 A. 103

BRAELOW et al.

v. KLEIN.

Court of Errors and Appeals of New Jersey.

May 19, 1924.

Appeal from Supreme Court.

Action by Louis Braelow and Elizabeth Braelow against Wigdor Klein and another. From judgment for plaintiffs against named defendant, he appeals. Affirmed.

Samuel Roessler and Frank E. Bradner, both of Newark, for appellant.

Braelow & Tepper, of Newark (Isidor Kalisch, of Newark, on the brief), for respondents.

LLOYD, J. The defendant, Wigdor Klein, was the owner of premises 283 Prince street in Newark, and Abraham Lemkin was the owner of premises 285 Prince street. In front of both properties paved sidewalks had been laid, and the complaint alleges that these sidewalks were so improperly constructed and maintained as to constitute a nuisance. On June 24, 1919, Elizabeth Braelow, one of the plaintiffs, while walking along, and in stepping from the Lemkin sidewalk to the Klein sidewalk, tripped over the latter, which was elevated above the sidewalk in front of the Lemkin property. The result was an injury, to recover damages for which the present action was instituted.

At the conclusion of the plaintiff's case a nonsuit was directed as to Lemkin, and the trial proceeded against Klein, resulting in a verdict for the plaintiffs.

The rulings of the court that are the subject of this appeal are a denial of a motion to nonsuit, refusal to direct a verdict for the defendant, the admission of two photographs in evidence, a portion of the charge to the jury, and the refusal of a request to charge.

Taking up the questions thus raised, the motions for a nonsuit and the direction of a verdict in favor of the defendant are first in importance. To properly consider them it must be borne in mind that the element of nuisance charged to the defendant was the gravamen of the complaint. It was contended, and there was proof to establish, that the sidewalk of the defendant Klein was approximately three inches above the sidewalk of Lemkin, and above that of other sidewalks in the block; that this created a dangerous menace to the users of the footwalk of the street. There was also proof that the condition had existed for a number of years during the ownership by the defendant of the premises 283 Prince street, and from which a jury could infer an adoption by him of the condition of the walk when he purchased. We have, therefore, presented the construction of a footwalk in a public highway so far out of alignment with the true pavement level as to constitute a danger in its use, and the continuance of that condition by the defendant without any effort on his part to correct the misalignment or to remove the danger. It is difficult to escape the conclusion of law that he would be chargeable with at least maintaining a nuisance in the public highway. The defendant sought to bring the case...