Mann v. Max

• Decision Date: 20 June 1919
• Docket Number: No. 59.,59.
• Parties: MANN v. MAX.
• Court: New Jersey Supreme Court

107 A. 417

MANN

v. MAX.

No. 59.

Court of Errors and Appeals of New Jersey.

June 20, 1919.

Syllabus by the Court.

Appeal from Circuit Court, Hudson County.

Action by Edward J. Mann against one Balene, who impleaded Harry J. Max. Directed verdict for defendant Balene, and verdict for plaintiff against defendant Max, and he appeals. Reversed.

Runyon & Autenrieth, of Jersey City, for appellant.

Alexander Simpson, of Jersey City, for respondent.

PARKER, J. The plaintiff, walking along the sidewalk of a public street in Jersey City at night, struck his head against a beam of a scaffold used in the erection of a new building on land of the appellant, and sustained personal injuries for which he recovered a judgment against appellant, which is the subject of this appeal. At the trial it appeared without dispute that appellant had made a general contract with one Balene for the erection of the building, that Balene had by further contract sublet the mason work thereon to one Giordano, and that the scaffold was put up by Giordano's employes in the prosecution of the work under the subcontract. It does not appear that plaintiff brought any suit against Giordano; he did bring suit against Balene, and later added appellant Max as owner. At the trial the court directed a verdict in favor of Balene, the principal contractor, but gave the case to the jury as against appellant, and this ruling and the denial of a motion to nonsuit are the principal grounds of appeal. The questions that the jury were instructed to decide as conditions of appellant's liability were, first, Was the scaffold, though erected by Giordano, a nuisance? And, secondly, If so, had it existed as such long enough for a reasonable owner to notice the fact and take proper steps to abate it?

We flbd ourselves unable to subscribe to this theory, or to see any theory of the evidence upon which the defendant's liability could be predicated. As a general rule it may be conceded that any private erection obstructing a public street is prima facie a nuisance; but this is subject to several important exceptions, mostly connected with the reasonable use by an abutting owner of his private property. Thus he is entitled to stand teams and vehicles in front of his property for a reasonable time; obstruct the sidewalk temporarily to receive and deliver goods (37 Cyc. 208; Tompkins v. North Hudson Street Railway Co., 63 N. J. Law, 322, 43 Atl. 885; Callanan v. Gilman, 107 N. Y. 360, 14 N. E. 264, 1 Am. St. (Rep. 831); pile building materials in the street in front of his premises during the erection of a building thereon, and keep them there for a reasonable time (Friedman v. Snare & Triest Co., 71 N. J. Law, 605, 61 Atl. 401, 70 L. R. A. 147, 108 Am. St. Rep. 764, 2 Ann. Cas. 497; Van O'Linda v. Lothrop, 21 Pick. [Mass.] 292, 32 Am. Dec. 261); and, as a necessary incident of building maintain scaffolds, cranes, and similar appliances needed in the erection of the outside walls. Such...