Cavanagh v. Hoboken Land & Improvement Co.

• Decision Date: 20 June 1919
• Citation: 107 A. 414
• Parties: CAVANAGH et al. v. HOBOKEN LAND & IMPROVEMENT CO.
• Court: New Jersey Supreme Court

107 A. 414

CAVANAGH et al.

v. HOBOKEN LAND & IMPROVEMENT CO.

Court of Errors and Appeals of New Jersey.

June 20, 1919.

Appeal from Circuit Court, Hudson County.

Action by Martha Cavanagh and her husband against the Hoboken Land & Improvement Company. Judgment for plaintiffs and defendant appeals. Reversed.

M. Casewell Heine, of Newark, for appellant.

Arthur B. Archibald, of Jersey City, for respondents.

GUMMERE, C. J. This is an appeal from a judgment in favor of Mrs. Cavanagh and her husband in an action brought to recover compensation for injuries received by the wife from a fall upon the pavement in front of the defendant company's property, caused by slipping upon ice which had formed there. The theory upon which the plaintiffs' case was rested, and upon which it was left to the jury, was that the presence of the ice upon the pavement was due to the wrongful act of the defendant, and that consequently it was responsible for injuries received by Mrs. Cavanagh, which were the direct result of that wrongful act.

The proofs showed that the roof upon the defendant's building was constructed with a gutter which gathered together the rain water, or the water resulting from melting snow, which had fallen thereon, and discharged it through a pipe or leader, which ran down the front of the building and into a drain which had been laid below the surface of the street; that this pipe or leader had been permitted by defendant to become broken and out of repair, so that the water thus collected, instead of passing down through it, ran down the outside thereof in large quantities and spread upon the sidewalk; and that the ice upon which Mrs. Cavanagh slipped was formed by the freezing of the water which escaped from the leader by reason of its impaired condition.

In the case of Jessup v. Bamford Bros. Co., 66 N. J. Law, 641, 51 Atl. 147, 58 L. R. A. 329, 88 Am. St. Rep. 502, which was a case somewhat similar to that now before us (the plaintiff having fallen upon ice which had formed upon the sidewalk in front of the defendant's premises from surface water cast thereon by the defendant), the trial judge instructed the jury that no person had a right to gather together the surface water on his own property, and throw it upon the sidewalk in a stream, thereby rendering the street more dangerous, or less convenient, than it otherwise would be for public travel; and that if he did so he was responsible for injuries caused thereby. This court held the instruction erroneous, for the reason that the concentration of the flow of water and its altered transmission to and upon a public highway was a necessary incident to the legitimate beneficial user of its property by the defendant, and that consequently any injury arising therefrom was not actionable.

If the defendant in the present case had not constructed a leader for the purpose of carrying off the water which had...