Harper v. City of E. Orange

• Decision Date: 15 October 1928
• Docket Number: No. 131.,131.
• Citation: 143 A. 435
• Parties: HARPER v. CITY OF EAST ORANGE.
• Court: New Jersey Supreme Court

143 A. 435

HARPER

v. CITY OF EAST ORANGE.

No. 131.

Court of Errors and Appeals of New Jersey.

Oct. 15, 1928.

Appeal from Circuit Court, Essex County.

Action by Edna L. Harper against the City of East Orange. Judgment for plaintiff, and defendant appeals. Affirmed.

Walter C. Ellis, of Newark, for appellant.

Edward R. McGlynn, of Newark, for respondent.

CAMPBELL, J. The respondent tripped over a cap on a water service cock in the sidewalk line of a street in East Orange, was injured, brought suit against the city, alleging negligence in its construction and maintenance of the apparatus, and recovered a verdict. East Orange supplies its inhabitants with water at a price based upon meter consumption. From the judgment entered upon this verdict the city appeals, urging seven grounds for reversal.

1. Error in refusing to direct a nonsuit because the evidence did not establish ownership or control of the appliance in the city.

We think there were proofs presenting a factual question for the injury to determine whether or not the appliance was installed by the city, and also whether or not it assumed and retained control over it.

or in admitting in evidence the ordinance of 1923 because it was not retroactive.

We think it was retroactive. At least, by its terms, it applies to all curb cocks, etc., irrespective of whether they were installed prior or subsequent to its adoption. Irrespective of this, the ordinance of 1910, which was in effect when the service cock in question was installed, provides, by section 15, "Supply pipes including curb cocks shall be put in only by the department," making it quite immaterial, therefore, whether or not the ordinance of 1923 applied and making its introduction harmless, if it did not.

3. Error in permitting the witness Stasse to testify concerning acts of the city's employes a week after the happening.

We think there was no prejudicial error in this, because such evidence was relevant and competent in tending to show the exercise of control by the city over the appliance.

4. Error in charging as follows:

"In this action, under certain circumstances, I am going to charge you that the defendant can be held on the same theory, providing you find negligence, and providing other parts of my charge are found to be applicable to certain facts, if you find those facts to exist. I do that, because in this instance, the city of East Orange operates its own waterworks by its own water department, attended to the distribution of this water, charged its own price for it and between the main and the house, the main which it owned and the meter which was its property, had a pipe line interrupted by a service cock for the purpose of turning off or on the water, and exercised the dominion over it that has been indicated, allowing the...