Friedman v. Snare & Triest Co.

• Decision Date: 19 June 1905
• Citation: 71 N.J.L. 605,61 A. 401
• Parties: FRIEDMAN v. SNARE & TRIEST CO.
• Court: New Jersey Supreme Court

61 A. 401

71 N.J.L. 605

FRIEDMAN

v. SNARE & TRIEST CO.

Court of Errors and Appeals of New Jersey,

June 19, 1905.

Dissenting Opinion, July 27, 1905.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Samuel Friedman against the Snare & Triest Company. Judgment for plaintiff, and defendant brings error. Reversed.

Cowles & Carey and Hector M. Hitchings, for plaintiff in error. Collins & Corbin, for defendant in error.

PITNEY, J. The defendant in error, who was plaintiff below, recovered a verdict and judgment for the damages that accrued to him through personal injuries sustained by his daughter Fannie Friedman, a child between four and five years of age, by reason, as alleged, of the negligence of the defendant. Reversal is prayed because of alleged trial errors, evidenced by bills of exception.

The declaration sets up that the firm of Colgate & Co. were proprietors and operators of a building and premises situate on the south side of York street, in Jersey City, used and operated as a manufactory for soaps and perfumes; that the defendant, Snare & Triest Company, was constructing an addition to the building, and was engaged in making certain repairs to the same, under contract with Colgate & Co.; that the defendant improperly placed and piled upon the sidewalk of the street, adjacent to the building, sundry iron girders, each 22 feet in length, 15 inches in height, and 4 inches in width, and each weighing about 1,000 pounds, in such manner that the girders were piled insecurely one above the other, and so that one of the girders rested in an insecure position, and was liable to fall suddenly and without warning and injure persons walking upon the street; that the defendant permitted the girders to remain in this insecure and dangerous position, without notice or warning to travelers; and that the insecure girder fell suddenly and without warning upon Fannie Friedman while she was traveling, walking, and passing upon the sidewalk adjacent to the building, and without negligence on her part, and thereby crushed her foot, etc. Upon the trial it was shown that the child was injured through the fall of one of twelve girders, of the character described in the declaration, that had been piled upon the sidewalk in front of Colgate & Co.'s premises, and had been permitted to remain there between two and four weeks, awaiting use in certain repair work that was in progress upon the factory. It was in controversy whether the jury could reasonably find from the evidence that the Snare & Triest Company was responsible for placing the girders there, or for their care while remaining in that position, or that there was any want of care about placing or maintaining them. For the sake of simplicity, we will assume that the legal questions thus raised were properly disposed of by the learned trial justice. It was indisputable, however, that the girders were required as building materials for the repair of the Colgate factory; that the defendant. if connected with the transaction at all, had delivered the girders under employment by Colgate & Co., and placed them longitudinally upon the sidewalk, piled one upon another, immediately adjacent to the front of the building, which abutted upon the side of the street. While numerous witnesses gave variant accounts of the way in which the Friedman child received her injury, it appears from all accounts that she was one of several small children who either were at the moment, or immediately before had been, playing upon the pile of girders. The evidence in no aspect sustained the averment of the declaration that at the time of her injury Fannie was walking and passing along the sidewalk as a traveler. She was either playing with the other children upon the girders, or was at the moment seated upon a girder, resting from her play. For this reason, at the close of the plaintiff's case an offer was made to amend the declaration to conform to the facts in this respect; and, while no amendment was actually made, the pleadings were treated for the purpose of the trial as if amended.

Under this state of the pleadings and proofs, therefore, we assume that the jury might reasonably find that if any legal duty was owing to the injured child or to the plaintiff, as her parent, with respect to the condition of the pile of girders, it was owing by this defendant, and that if this duty included the exercise of care that the girders should be so placed and maintained as not to cause injury to children playing upon them, or resting upon them during the play, it might be found that the duty had been neglected. At the same time the question of defendant's responsibility must be viewed in the light of the uncontroverted fact that whatever it had done about placing and keeping the girders there had been done under employment of Colgate & Co., for the purpose of repairs upon their building, and done in their right as owners and occupants of the land.

Motions for nonsuit and for direction of a verdict in defendant's favor were overruled, and the case was submitted to the jury with instructions from the trial justice to the effect that the defendant company had the right to put the girders in the street, provided they were put there in a safe condition; that while they remained there the duty rested upon the defendant of exercising reasonable care to see that they were kept in a safe condition; that the propensity of little children to play upon the street, and to rest from their play in the street, was to be taken into consideration; that if through defendant's want of care the girders were left in the street in such condition that they would tempt little children to make use of them, either for play or for resting, and would be dangerous to the children thus using them, a case of actionable negligence was made out; and that the fact that Fannie Friedman was playing upon the girders, in view of her tender years, would not bar her right to recovery. Numerous exceptions challenged the propriety of these instructions, and of other rulings and instructions that were based upon the same theory.

There was nothing in the case to exclude the inference that the title and possession of Messrs. Colgate & Co. extended to the middle of the street. In our courts it has long been established that, in the absence of anything to show the contrary, the title and legal possession of the abutting owner or occupant do extend to the middle of the road or street; the freehold remaining in him, subject only to the easement or right of passage in the public. So it was laid down in our Supreme Court more than half a century ago in Winter v. Peterson, 24 N. J. Law, 524, 527, 61 Am. Dec. 678. The same rule was recognized 10 years later by Chancellor Green in Hinchman v. Paterson R. Co., 17 N. J. Eq. 75, 82, 86 Am. Dec. 252, where he said: "The presumption of law is that the owners of the land on each side of the street own to the middle of the street, and have the exclusive right to the soil, subject to the right of way. It is objected by the defendant's answer that the complainant's titles do not extend to the middle of the street, because the lands as described are bounded by the sides of the streets. But the established inference of kiwis that a conveyance of land bounded on the public highway carries with it the fee to the center of the road, as part and parcel of the land." This statement of the rule was referred to by Chief Justice Beasley in delivering the opinion of this court in Salter v. Jonas, 30 N. J. Law, 460, 472, 23 Am. Rep. 229; and the rule was made the basis of deciding that in a conveyance of lands, with abuttals coinciding with the side of a street or highway, nothing short of express words of exclusion will prevent the title from extending to the middle of the street, if the grantor at the date of such conveyauce is the owner of the street to that extent In Weller v. McCormick, 52 N. J. Law, 470, 473, 19 Atl. 1101, 8 L. R. A. 708, it was held by the Supreme Court that where one is in actual occupation, as owner, of the premises abutting upon the street, his title and possession presumably extend to the middle of the street, subject only to the public rights. The same doctrine is recognized in Hoboken Land & Imp. Co. v. Kerrigan, 31 N. J. Law, 13; State, Benson, Pros., v. Mayor, etc., of Hoboken, 33 N. J. Law, 280, 281; Green v. Trenton, 54 N. J. Law, 02, 102, 23 Atl. 281; Ocean Grove v. Berthall, 62 N. J. Law, 80, 40 Atl. 779; and Ocean City Ass'n v. Shriver, 64 N. J. Law, 554, 46 Atl. 600, 51 L. R. A. 425. The substantial character of the rights of the abutting owner in the soil of the street is recognized in all our decisions that touch upon the subject. Besides the cases already noted, the following may be referred to: Wright v. Carter, 27 N. J. Law, 76. See State v. Laverack, 34 N. J. Law, 207. Burnet v. Crane, 56 N. J. Law, 288, 28 Atl. 501, 44 Am. St. Rep. 395; Wuesthoff v. Seymour, 22 N. J. Eq. 66, 70; Avis v. Vineland, 56 N. J. Law, 474, 477, 28 Atl. 1039, 23 L. R. A. 685; French v. Robb, 67 N. J. Law, 260, 51 Atl. 509, 57 L. R. A. 956, 91 Am. Dee. 433.

It is the undoubted right of landowners to deposit in the street building materials required in the improvement of their abutting property, although the public lawfully using the street may be, as in many cases they necessarily are, to some extent incommoded thereby. 27 Am. & Eng. Encyc. Law (2d Ed.) Tit. "Roads & Streets," p. 156. Of course, the right is to be reasonably exercised, in view of the rights of the public, and is subject to regulation in the public interest. Where the ownership of the soil of the street is not in the abutting owner, his right to use the street for this and other like purposes is vindicated on the ground of necessity, as in Van O'Linda v. Lothrop, 21 Pick. 202, 207 32 Am. Dec. 261. While not questioning that necessity would furnish a sufficient justification in the present case, yet since it appears that...