Halm v. Bd. of Chosen Freeholders of Hudson County

• Decision Date: 20 June 1910
• Citation: 78 N.J.L. 712,76 A. 1014
• Parties: HALM v. BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY.
• Court: New Jersey Supreme Court

76 A. 1014

78 N.J.L. 712

HALM

v. BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY.

Court of Errors and Appeals of New Jersey.

June 20, 1910.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Josephine Halm, administratrix, against the Board of Chosen Freeholders of the County of Hudson. Judgment of nonsuit, and plaintiff brings error. Affirmed.

Colby & Whiting, for plaintiff in error.

John Griffin, for defendant in error.

VOORHEES, J. The plaintiff's intestate, while riding at his son's invitation, in an automobile driven by his son, on March 22, 1908, at about 7:15 p. m. on Harrison avenue, was injured by reason of the vehicle coming in contact with a guard rail at a bridge over Frank creek in said highway. The bridge in question was a county bridge. It was not of the full width of the highway, at the time of the accident; the proof being that some two years before the highway had been widened and curbed on one side, so that there was a space of about seven feet on the side of the bridge between it and the line of curbing. It was also shown that from the side of the bridge, extending at right angles toward the curb, there had been erected, by whom does not appear, a fence or barrier composed of 2x4 uprights carrying a top rail of 4x6 timber. This fence or barrier extended some three or four feet from the side of the bridge, the remaining space up to the curb being without any guard, so that a person driving along the curb would meet with no physical barrier to prevent him going into the creek. The automobile in question had proceeded from Paterson to Newark, where the side oil lamps were lighted; but the large gas lamps were not. The journey was continued on the highway in question toward Jersey City. It was dark when the bridge was reached, and there was no light on the fence or railing; but there were lights along the highway, one arc light being within 70 feet of the bridge. The driver describes the occurrence as follows: "When we came to the bridge, it was dark, and there was no light there at all. We came along and we heard a crash of our machine." They came within five or ten feet of the bridge before they saw the railing and ran into it, going through it a few feet, tearing it away. The declaration avers negligence in the defendants in the erection, rebuilding, and repair of the bridge, whereby the same was dangerous, because vehicles "were likely to come suddenly, unexpectedly, and unavoidably in contact with the railing"; that the defendants failed to "light the bridge by artificial lights," and erected the bridge so negligently that "it was unsafe * * * for the persons to draw near to and enter upon the bridge." At the conclusion of the plaintiff's case, a nonsuit was granted. To review this judicial action, this writ is being prosecuted.

As negligence of the driver cannot be imputed to the decedent, the question of contributory negligence does not arise. The sole question, therefore, to be disposed of is the negligence of the defendants.

It is conceded that in the daytime the bridge was perfectly safe. Section 9 of the bridge act (Gen. St. 1895, p. 307) provides that if the "board of chosen freeholders shall wrongfully neglect to erect, rebuild or repair any bridge by reason whereof, any person or persons shall receive injury or damage in his or her persons or property, he or they may bring his or their action of trespass on the case against * * * against said board of chosen freeholders * * * and recover judgment." The scope of this act has been narrowed by this court to those cases in which injuries have been sustained,...