Hartman v. City of Brigantine, Nos. A--86

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: JACOBS
• Citation: 129 A.2d 876,23 N.J. 530
• Docket Number: Nos. A--86,A--87
• Decision Date: 11 March 1957
• Parties: Eva F. HARTMAN, Administratrix ad prosequendum and Eva F. Hartman, Administratrix of the Estate of Harry Hartman, Deceased, Plaintiff-Respondent, v. CITY OF BRIGANTINE and County of Atlantic, Defendants-Appellants.

Page 530

23 N.J. 530 129 A.2d 876 Eva F. HARTMAN, Administratrix ad prosequendum and Eva F.
Hartman, Administratrix of the Estate of Harry
Hartman, Deceased, Plaintiff-Respondent,
v.
CITY OF BRIGANTINE and County of Atlantic, Defendants-Appellants. Nos. A--86, A--87. Supreme Court of New Jersey. Argued Feb. 11, 1957.
Decided March 11, 1957.

Page 531

[129 A.2d 877] Harry Miller, Atlantic City, for appellant Atlantic County.

Herbert Horn, Atlantic City, for appellant City of Brigantine (Lloyd, Horn, Megargee & Steedle, Atlantic City, attorneys).

Josiah E. DuBois, Jr., Camden, for respondent (Josiah E. DuBois, Jr., and Madison S. DuBois, Camden, attorneys).

The opinion of the court was delivered by

JACOBS, J.

The Appellate Division, in an opinion by Judge Conford, set forth the pertinent facts and legal principles and properly held that the evidence was sufficient to call for retrial and jury determination on the primary issues of negligent misfeasance (active wrongdoing) and contributory

Page 532

negligence. Hartman v. City of Brigantine, 42 N.J.Super. 247, 126 A.2d 224 (App.Div.1956). We affirm thereon and consider it necessary to deal only with the plaintiff's additional contention that the defense of contributory negligence is inapplicable and should not be submitted to the jury on the retrial.

If this were an ordinary negligence action against private litigants no question would be raised as to the applicability of the defense of contributory negligence. Notwithstanding statutory proposals to modify the rigors of te defense, it remains largely unaffected by legislation in our State and many of the other states. And though courts have been viewing the defense with increasing disfavor they recognize its effect and the irrelevancy of the comparative degrees of negligence between the parties. Many years ago Justice Depue expressed New Jersey's position in terms which still hold true:

'In this state the established rule is that if the plaintiff's negligence contributed to the injury, so that if he had not been negligent, he would have received no injury from the defendant's negligence,--the plaintiff's negligence being proximately a cause of the injury,--he is without redress, unless the defendant's act was a willful trespass, or amounted to an intentional wrong, and in such a case the comparative degree of the negligence of the parties will not be considered. New Jersey Express Co. v. Nichols, 33 N.J.L. (434,) 435, 4 Vroom (434,) 435; Pennsylvania R. Co. v. Righter, 42 N.J.L. 180, 13 Vroom 180'. Menger v. Laur, 55 N.J.L. 205, 215, 26A, 180, 184, 20 L.R.A. 61 (Sup.Ct.1893).

See Maccia v. Tynes, 39 N.J.Super. 1, 7, 120 A.2d 263 (App.Div.1956); Prosser, Torts, (2d ed. 1955) 283, 290; 2 Harper and James, Torts 1193, 1213 (1956). Compare Bress, 'Comparative Negligence, 43 A.B.A.J. 127 (1957), with Harkavy, 'Comparative Negligence,' 80 N.J.L.J. 97 (1957).

The plaintiff does not dispute the foregoing but stresses that her action is not against private litigants but is against municipal corporations for active wrongdoing in the maintenance and care of a public highway; she urges that her claim is not grounded on negligence and relief should not be barred by contributory negligence. Much has

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recently been written in our State with regard to the expanding tort liability of municipal corporations. See Cloyes v. Township of Delaware, 23 N.J. 324, 129 A.2d 1 (1957); Taylor v. New Jersey Highway[129 A.2d 878] Authority, 22 N.J. 454, 126 A.2d 313 (1956); Casale v. Housing Authority, City of Newark, 42 N.J.Super. 52, 125 A.2d 895 (App.Div.1956); Kelley v. Curtiss, 29 N.J.Super. 291, 102 A.2d 471 (App.Div.1954), reversed 16 N.J. 265, 108 A.2d 431 (1954). While active wrongdoing still remains the basis of municipal liability it is sufficient if there has been a 'negligent act of commission.' Milstrey v. City of Hackensack, 6 N.J. 400, 408, 79 A.2d 37 (1951); Allas v. Borough of Rumson, 115 N.J.L. 593, 595, 181 A. 175, 102 A.L.R. 648 (E. & A.1935). And the more recent cases have displayed a just readiness in finding that the negligent conduct of the defendant municipality in the maintenance and care of the highway included affirmative action which would support a jury determination of active wrongdoing. See Latzoni v. City of Garfield, 22 N.J. 84, 94, 123 A.2d 531 (1956); Taverna v. Hoboken, 43 N.J.Super. 160, 165, 128 A.2d 11 (App.Div.1956), certification denied 23 N.J. 474, 129 A.2d 604 (1957). Cf. Milstrey v. City of Hackensack, supra; Allas v. Borough of Rumson, supra.

In the Milstrey case the plaintiff was injured when she caught her heel in a broken and depressed sidewalk which had been negligently resurfaced by the defendant municipality. She recovered a judgment which was a first sustained by the Appellate Division (8 N.J.Super. 221, 73 A.2d 747 (App.Div.1950)) and later by this court. 6 N.J. 400, 79 A.2d 37, 40 (1951). Justice Heher's opinion pointed out that the danger to the plaintiff arose from 'a nuisance growing out of negligence' and that the jury was properly permitted to find that...