Fay v. City of Trenton

• Decision Date: 28 January 1941
• Docket Number: No. 27.,27.
• Citation: 18 A.2d 66,126 N.J.L. 52
• Parties: FAY et al. v. CITY OF TRENTON.
• Court: New Jersey Supreme Court

18 A.2d 66

126 N.J.L. 52

FAY et al.

v. CITY OF TRENTON.

No. 27.

Court of Errors and Appeals of New Jersey.

Jan. 28, 1941.

Syllabus by the Court.

1.A municipality, in distributing water to its inhabitants, for a price, is exercising a private or proprietary function, and is governed by the same rules as apply to private corporations.

2.A municipality which, in exercising the proprietary function of distributing water to its inhabitants for a price, installs, in the public sidewalk, a covered box containing a water meter for the purpose of making recurring use thereof in reading the meter, in the course whereof it removes and replaces the lid, is under a duty to use reasonable care to restore the lid to, and maintain it in, a condition safe for the use of pedestrians.

3.The testimony in the case reviewed and held to present a jury question on the exercise of reasonable care by the municipality in its maintenance of a designated meter box in a public sidewalk.

Appeal from Circuit Court, Mercer County.

Action by Anna Fay and John Fay against the City of Trenton, a municipal corporation, for injuries sustained by Anna Fay when she stepped into a meter box in a public sidewalk near the curb. From a judgment for the plaintiffs, the defendant appeals.

Affirmed.

Frank I. Casey, of Trenton, for plaintiffs-respondents.

Louis Josephson, of Trenton, for defendant-appellant.

CASE, Justice.

The appeal is from a judgment of $2,500 for Anna Fay and $500 for John Fay, husband of Anna Fay, entered upon a jury verdict in the Mercer County Circuit Court against the City of Trenton. The suit was to recover damages for the injuries suffered by the female plaintiff in stepping into a meter box in a public sidewalk near the curb. The City of Trenton grounds its appeal in the refusal of the trial judge to grant either a nonsuit or a direction of verdict in favor of the defendant when thereunto moved; and these grounds may be resolved into the single question of whether or not there was evidence in support of plaintiff's case sufficient to go to the jury.

There was testimony which directly or by legitimate inferences drawn therefrom would sustain factual findings that: The City of Trenton has a municipal water distribution service and as part thereof maintains metal meter boxes beneath the sidewalks, the lids thereof being flush with the surface. The boxes are so equipped that the lids thereof may be locked, and it is the practice of the Water Department employees always to have a key with them to unlock and remove the lid and on reading the meter to replace and lock the lid. When the boxes are locked, they may not be opened without a key. One such box is in the sidewalk in front of 549 North Clinton Avenue, and the meter therein contained is to measure the quantity of water delivered on private sale. Mrs. Fay, while walking across the sidewalk from a store door to her car, parked at the curb, stepped on the side of the lid. Before she stepped upon it, the lid was in its place, but with the pressure of her weight it tilted side-wise letting her foot into the meter box and throwing her to the ground. A passerby pushed the lid back into position. When a Water Department employee answered the telphone summons to the spot, the box was not locked. There is a confusion of dates in the testimony, but it is apparent that this visit was made immediately following the accident; appellant's brief places the visit from twenty to thirty minutes after the occurrence and states that it was made upon notification by the plaintiff of the accident. Duplicates of the box and lid were, under stipulation, brought before the trial court and submitted to the view and inspection of the jury; the key, the process of locking and unlocking and the security, or lack of it, in the lid...