Davis v. Tallon

• Citation: 91 N.J.Law 618,103 A. 236
• Parties: DAVIS v. TALLON et al.
• Decision Date: 04 March 1918
• Court: New Jersey Supreme Court

103 A. 236

91 N.J.Law 618

DAVIS

v. TALLON et al.

Court of Errors and Appeals of New Jersey.

March 4, 1918.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Action by Mary Davis against Anna Tallon and Richard Schreiber and others. Judgment for plaintiff, and in favor of defendant Schreiber. Rule to show cause was made absolute by the Supreme Court, which allowed a venire de novo on the question of damages, and from a greater verdict defendants appeal. Affirmed.

M. Casowell Heine, of Newark, for appellants. Weller & Lichtenstein and J. Raymond Tiffany, all of Hoboken, for appellee.

BERGEN, J. This action was brought by the plaintiff against Anna Tallon and others as owners, and Richard Schreiber, lessee, of a lot of land on Willow avenue, Hoboken, to recover for injuries she suffered by falling and breaking her leg while walking over a sidewalk laid along the front of the lot by the owner, caused by the impaired condition of the flagstones constituting the sidewalk. There was evidence from which a jury might infer that the defendant owners leased the lot to different tenants for storing wagons, the defendant Schreiber being in possession at the time plaintiff was injured; that it was fenced from the street with a gateway to allow wagons ingress and egress to and from the street and lot over the sidewalk; that the owners leased it for such use, and that some one of the tenants in so using it, for a purpose to which it was not adapted, broke the stones, and created a condition amounting to a public nuisance. The plaintiff's case was not rested upon any legal obligation of the owner to keep the sidewalk in repair, but upon the claim that defendants, by subjecting the sidewalk to a use not intended, that of use by ordinary pedestrians, created a nuisance which rendered them liable for injuries to persons lawfully using it. The case was submitted to the jury on this theory, who found for the plaintiff against the owners, and awarded her $100, and in favor of the defendant Schreiber. The plaintiff procured a rule to show cause, based upon the insufficiency of the damages, which the Supreme Court made absolute, and allowed a venire de novo on the question of damages alone, and, that question being again submitted to the jury, the plaintiff was awarded a verdict for $600, upon which the judgment was entered, from which defendant has appealed.

The only grounds of appeal filed by the defendant are: (a) Refusal to nonsuit; (b) refusal to direct for defendant; (c) verdict contrary to the charge of the court; (d) verdict contrary to law and weight of the evidence; (e) damages excessive. At the close of the case counsel for the owners moved a direction which was denied, but no exception was taken to this, and thereupon counsel for Schreiber made the same motion for his client, which was also denied, and he took an exception, vide page 119 of the record. The three last reasons are not available on error, but are subject to review on a rule to show cause, there being no exception on which to rest an assignment of error, or, under our new practice act, ground of appeal. The correction of a verdict upon which a judgment rests is the function of the trial court; we only deal with the legality of the judgment or its evidential support when the question is properly presented. A writ of error does not lie to set aside a verdict because it is alleged to be contrary to law and the weight of che evidence.

The respondent urges that the defendants have lost their right to appeal...