Callan v. City of Passaic

• Decision Date: 14 May 1928
• Docket Number: No. 72.,72.
• Citation: 141 A. 778
• Parties: CALLAN v. CITY OF PASSAIC.
• Court: New Jersey Supreme Court

141 A. 778

CALLAN

v. CITY OF PASSAIC.

No. 72.

Court of Errors and Appeals of New Jersey.

May 14, 1928.

(Syllabus by the Court.)

The Chancellor and Kalisch, Black, and Dear, JJ., dissenting.

Appeal from Circuit Court, Passaic County.

Action by James Callan, administrator ad prosequendum of James Callan, deceased, against the City of Passaic. From a judgment for plaintiff, defendant appeals. Reversed.

Joseph J. Weinberger, of Passaic, for appellant.

William B. Gourley, of Paterson, for respondent.

HETFIELD, J. This is an appeal from a judgment of the Passaic county circuit court, for $1,000, entered upon a verdict for the plaintiff below, who brought the action as administrator ad prosequendum of James Callan, deceased, against the city of Passaic. The facts, which are not disputed to any extent, show that the plaintiff's intestate, a young boy, seven years of age, was drowned in a catch-basin, constructed and maintained by the defendant, for the reception of storm water. It was located at the curb line on the northerly side of Gregory avenue. The accident happened during daylight, about 7 o'clock p. m., standard time, on July 29, 1925. The deceased was playing with other boys, when he was told by Fred Callan, an older brother, to go home, which he refused to do, and attempted to hide from his brother, Fred, by getting down on his stomach in the street and crawling backwards into one of the openings in the catch-basin, entering feet first, and, while so doing, his head struck the top of the opening and he dropped into the basin. The basin had two openings to receive surface water. The one entered by the deceased was on the westerly side, and was approximately 11 inches in height and 22 inches in width, and had no bars or guards across it. The basin, which had been in general use for some 20 years, was so located that it received a large volume of surface water from a steep grade. It was about 9 feet deep, and contained 5 feet of water at the time of the accident.

There are several grounds of appeal urged for reversal, one of which is based upon the refusal of the trial judge to direct a verdict for the defendant: and, as we are of the opinion that it was error to deny the motion for a direction, it is only necessary to consider this one ground of appeal. At the close of the whole case there does not appear to have been any evidence before the trial court which would justify the inference that the death of the child resulted from active wrongdoing, chargeable to the municipality; consequently the case was not within the authorities which hold municipal corporations liable for damages to those receiving injuries from the active wrongdoing of their agents; and for this reason, there was no question of fact to be transferred to the jury for its consideration.

It appears from the evidence that the construction of the catch-basin was a public necessity, by reason of the large volume of surface water to be disposed of, and by erecting and maintaining it the defendant was discharging a duty imposed solely for the public benefit, and was performing a public service in which it had no particular interest, and from which it derived no special benefit or advantage in its corporate capacity.

It is, and has long been, settled by the courts in this state, that in the absence of a statutory provision, a municipal corporation charged with the performance of a public duty is not liable to an individual for neglect to perform it, or negligence in the performance of such duty, whereby a public wrong has been done for which indictment will lie, although such individual has suffered special damage. Board of Freeholders of Sussex v. Strader, 18 N. J. Law, 108, 35 Am. Dee. 530; Cooley v. Freeholders of Essex, 27 N. J. Law, 415; Hart v. Freeholders of Union, 57 N. J. Law, 90, 29 A....