Casey v. Bridgewater Tp., 96.

• Decision Date: 20 October 1930
• Docket Number: No. 96.,96.
• Citation: 151 A. 603
• Parties: CASEY v. BRIDGEWATER TP., SOMERSET COUNTY.
• Court: New Jersey Supreme Court

151 A. 603

CASEY

v. BRIDGEWATER TP., SOMERSET COUNTY.

No. 96.

Court of Errors and Appeals of New Jersey.

Oct. 20, 1930.

Syllabus by the Court.

It is well settled that a municipal corporation is never liable in damages for the legal and proper exercise of a strictly governmental function, or for a breach or neglect of a public duty constituting a public evil or nuisance, affecting the body of the people as a whole, where the only remedy is by indictment, although individuals may sustain injury thereby; but it is so liable where the wrongdoing creates only a private nuisance, for which no indictment will lie, or where there is active wrongdoing chargeable to the corporation.

Additional Syllabus by Editorial Staff.

Appeal from Supreme Court.

Action by Edward Casey against the Township of Bridgewater in the County of Somerset. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

Louis Auerbacher, Jr., of Newark, for appellant.

Frederick A. Pope, of Somerville, for respondent.

McGLENNON, J.

In this case, a motion for nonsuit was granted on the opening made by counsel for the plaintiff, and statement of facts he intended to prove. In substance, these facts were as follows: On October 16, 1926, the plaintiff was engaged as a driver of an autotruck by one Fred Goellner. Goellner had been employed by the defendant township to supply a truck, driver, and two men to dig and remove gravel from a gravel pit, located on private land, owned by one Andrew Ballantine. The defendant, a municipal corporation, was engaged in the building and repair of a road within its corporate limits, and had contracted with the owner of the land, Ballantine, for the right to dig and cart away grayel from his pit, at a certain price per load. It was averred that at the time plaintiff had driven his truck to the pit, there were employees both of the township and of Goellner, at work there, digging gravel to be loaded on the truck for defendant to cart away for use on the road. It developed that the digging was carried on under the direction of the representatives of the township, and was done in such a way as to leave the walls of the pit in practically a perpendicular condition; and further that a crowbar was vised to loosen the dirt at the top of the bank, and that the men dug down under neath, in order to get the gravel out from the pit, and that the pit had no slope.

It was further stated by counsel that plaintiff was waiting at the pit, during the lunch hour, for the men to resume work and load' his truck, so that he could cart the gravel away. It was also stated that while he was waiting there, he was not warned of any dangerous condition, or that the gravel had been loosened at the...