Lightcap v. Lehigh Valley R. Co.

• Decision Date: 06 May 1915
• Citation: 87 N.J.L. 64,94 A. 35
• Parties: LIGHTCAP et al. v. LEHIGH VALLEY R. CO.
• Court: New Jersey Supreme Court

94 A. 35

87 N.J.L. 64

LIGHTCAP et al.

v. LEHIGH VALLEY R. CO.

Supreme Court of New Jersey.

May 6, 1915.

(Syllabus by the Court.)

Appeal from Circuit Court, Warren County.

Action by Ava Lightcap and her husband against the Lehigh Valley Railroad Company. From judgment for plaintiffs, defendant appeals. Reversed, and venire de novo awarded.

Argued February term 1915, before TRENCHARD, BERGEN, and BLACK, JJ.

Smith & Brady, of Phillipsburg, for appellant. Elinor R. Gebhardt, of Clinton, for appellees.

BERGEN, J. The defendant is the owner of a tract of land adjacent to a public street in the town of Phillipsburg. This street was laid out by the municipal authorities, and its improvement required an excavation along the land of the defendant, which sloped towards the street, and the defendant built a retaining wall along the side of the street, which required some filling in order to bring the slope to the top of the wall, thereby reducing the natural slope, although not enough to prevent the surface water falling on defendant's land from running over the wall and falling on the street. There was some evidence that, prior to these improvements, the surface water escaped partly by running over the land taken for the proposed street, and partly in another direction towards a canal basin, and that the defendant so changed the topography of its land as to cast all the surface water on the street. At the time of the accident which produced plaintiff's injuries, she was walking with her husband along the sidewalk, a part of which was covered with ice resulting from the melting of the snow lying upon defendant's land which had run over the wall and fallen upon the sidewalk. As the plaintiff was walking along the sidewalk, she fell upon the ice and received injuries, for which she brought her suit, in which her husband joined, and each recovered a verdict, upon which judgment has been entered, and from which the defendant appeals.

The first point argued is that the trial court erroneously refused defendant's motion for a nonsuit, which was based upon several grounds, the first of which was that the plaintiff was guilty of contributory negligence in that she did not exercise reasonable care in going upon the ice which she saw. But reasonable care only requires the precaution to be in proportion with the danger of injury, and this may vary with the circumstances of every case. Durant v. Palmer, 29 N. J. Law, 544. In the present case, plaintiff saw the ice on the sidewalk, but assumed that she could safely pass with the assistance of her husband, whose arm she was holding. We think that the question whether she exercised reasonable care under these circumstances was one for the jury, otherwise the court would have to decide, in each instance, whether the condition of the sidewalk as to ice and snow was such that a person, in the exercise of reasonable care, would not undertake to walk along it, and we think there was no error in the refusal to nonsuit upon this ground.

The next point in support of the motion is that there was no evidence to show a greater flow of water over the street after the improvement than there was before. But the evidence on this point was contradictory, and therefore the precise point raised on this part of the case, under this theory, was a question of fact.

The third matter urged by the defendant was that the laying out of the sidewalk and its grades were fixed by the municipality of rhillipsburg, and that the defendants were not chargeable for anything that occurred because the street was entirely changed. But manifestly this is no ground for nonsuit, because the basis of the action is not that the grade of the street had been changed, but that the defendant had negligently caused the street to become dangerous.

The fourth and last point was that there was no evidence that the defendant piled any snow...