Jaixen v. Hargreaves

• Decision Date: 20 October 1941
• Docket Number: No. 11.,11.
• Citation: 22 A.2d 276,127 N.J.L. 370
• Parties: JAIXEN v. HARGREAVES et al.
• Court: New Jersey Supreme Court

22 A.2d 276

127 N.J.L. 370

JAIXEN

v. HARGREAVES et al.

No. 11.

Supreme Court of New Jersey.

Oct. 20, 1941.

Appeal from Court of Common Pleas, Essex County.

Action for injuries by Emma Jaixen against Robert Hargreaves and the Town of Bloomfield, a municipal corporation of the state of New Jersey. The action was discontinued as against the first-named defendant, and from a judgment for the plaintiff, the remaining defendant appeals.

Affirmed.

Argued May term, 1941, before BROGAN, Chief Justice, CASE and HEHER, Justices.

Edward C. Pettit, of Bloomfield (Wm. Huck, Jr., of Bloomfield, of counsel), for appellant.

Coult, Satz, Tomlinson & Morse, of Newark (Joseph Coult and Joseph Coult Jr., both of Newark, of counsel), for appellee.

BROGAN, Chief Justice.

This is an appeal by the municipal defendant, Town of Bloomfield, from a judgment recovered by the plaintiff for personal injuries. The plaintiff was severely injured when the automobile in which she was riding, operated by her son-in-law, Robert Hargreaves, struck a declivity or "valley gutter" formed by the intersection of two streets in Bloomfield. The plaintiff's claim is, as stated in her pleading, that the said Town "did actively create and did maintain in a negligent manner an obstruction or gully without proper guards or warning signs in the center of Park Street at its intersection with State Street whereby the automobile in which the plaintiff was riding was thrown violently about so as to cause the plaintiff to be injured about the body."

In support of the plaintiff's case it was proved that at the time of the injury, one highway, State Street, had "a very high crown" which continued across the intersection of Park Street. The two streets are almost at right angles, the former running north and south, the latter east and west. The car in which plaintiff was riding was proceeding easterly on Park Street when it struck that which is referred to as the "valley gutter" which ran along the curb line of State Street. The gutter in question was described as having a depth of seven inches.

The appellant contends that it was error on the part of the trial court to deny its motion for nonsuit at the close of the plaintiff's case and its motion for direction of verdict at the conclusion of the whole case because at neither juncture of the proceeding was there evidence to establish active wrongdoing. The argument is that there was no evidence from which the jury could find that the valley gutter was a nuisance. It is also said that there was no proof that the municipality constructed the valley gutter. Now the appellant concedes that "any obstruction or erection in a public highway which interferes with the rights of a person lawfully passing thereon amounts to a common or public nuisance for which a municipality is charged with responsibility if it was an active agent or instrument in the creation of the perilous condition," (Fredericks v. Dover, 125 N.J. L. 288, 15 A.2d 784, 785); but it is insisted that the municipality was not "an active agent or instrument in the creation of the perilous condition" here under consideration. In defense of this conclusion it is said that the valley gutter when built, some thirty years ago, was considered proper road construction. Valley gutters at that time were an accepted method to permit the running off of surface water. The contention therefore is that even with the advent of the automobile the municipality, even though it presently recognized the valley gutter as a danger to such rapid means of surface transportation, and because the gutter was an accepted method in aid of drainage when built, nevertheless was under no duty to correct this situation. We need not pause to consider this argument because the facts in the case show that in 1936 or 1937 some of the road surface on Park Street in this area was torn up and an eight inch water main laid along State...