Martin v. City of Asbury Park

• Decision Date: 27 September 1933
• Docket Number: No. 25.,25.
• Citation: 168 A. 612
• Parties: MARTIN et al. v. CITY OF ASBURY PARK.
• Court: New Jersey Supreme Court

168 A. 612

MARTIN et al.

v. CITY OF ASBURY PARK.

No. 25.

Court of Errors and Appeals of New Jersey.

Sept. 27, 1933.

Syllabus by the Court.

1. Where there is proof in support of a cause of action, the weight of such proof is for the jury and in that body resides the right of settling the issue under proper instructions from the trial judge.

2. In the cause under review there was such proof and a submission to the jury under instructions, not challenged by exceptions; consequently no error of law was presented reviewable upon appeal.

3. A cause of action based upon a structural defect in a building does not call for proof of notice of such defect to the owner.

4. Where an owner designs and devotes a building to public or semipublic use, the public is deemed to be invited to make such use thereof by the owner and the latter cannot evade responsibility of exercising due care to make it reasonably safe by demising it to a tenant.

5. A municipality engaged in a proprietary or business function as distinguished from a purely governmental act is answerable for negligent acts of its agents as would be an individual.

6. A municipality in the exercise of strictly governmental duty is answerable to any member of the public directly injured by its active wrongdoing.

Appeal from Supreme Court, Union County Circuit.

Action by Isabelle Martin and others against the City of Asbury Park and another. From an adverse judgment, the named defendant appeals.

Affirmed.

James D. Carton, of Asbury Park, for appellant.

Francis A. Gordon, John M. Mackenzie, and Samuel J. Marantz, all of Elizabeth, for respondents.

CAMPBELL, Chancellor.

On July 27, 1929, respondent, Isabelle Martin, was in a bathing pavilion, known as "Unit 8," constructed and owned by the appellant, city of Asbury Park, and by it leased with other bathing privileges to one Mitchell.

Mrs. Martin rented a bathhouse in this Unit and, on the day above mentioned, after being in the ocean and on the beach, had gone to the showers provided in the pavilion and from there she proceeded to a stairway leading to the floor upon which her bathing compartment was located. She says the treads of the steps were wet, slippery, and slimy; and so was the handrail, and that when she had reached the fourth or fifth step her foot slipped, she lost her hold on the rail, and, there being only open risers, she was thrown backward and downward to the floor below and injured.

She, with her husband, brought suit against the city, and Mitchell, its lessee, a trial of which cause resulted in a verdict of $23,000 in favor of the plaintiffs-respondents, against the city-appellant only; the jury finding no cause of action against the city's lessee, Mitchell. This verdict was subsequently reduced to $18,000, and from the judgment entered thereon the city appeals, urging several grounds for reversal under three points.

It is first urged that the trial court erred in refusing to direct a nonsuit. Under this it is argued:

1. No negligence in construction, or nuisance created by faulty construction, was shown by any proof that the steps were unsafe, improper, or inadequate for the purpose for which they were designed and constructed.

Among the several charges of liability as against the city is the outstanding one of improper construction of the stairway.

Much of the testimony, in this direction, is from the respondents' witness Schneider, which is largely devoted to the height of risers, width of treads, and matters of construction of a like character, which, to us, appears to be irrelevant to the actual situation which evidently caused the happening.

This witness did, however, testify that he was familiar with the standard and generally approved methods of construction of stairways in bathing establishments, frequented by large numbers of persons at seashore resorts, and that such methods required a non-slip tread or nosing for the purpose of making them nonslip, a. condition and method of construction not found in the stairway in question, which consisted of a one piece spruce tread with open risers.

The testimony of this witness is, to us, not impressive, but it existed, and was sufficient to send that issue to the jury for settlement, which was done, under instructions from the trial judge, which were not excepted to, and the jury must have found thereon in favor of the respondents, as it could have done upon the proofs. Whether the weight of the proof was sufficient and proper to warrant such a finding is a matter not before us.

2. That the appellant, city, could not be held liable because there was no proof of notice to it of any defective condition in the stairway.

In support of this insistence Schnatterer v. Bamberger, 81 N. J. Law, 558, 79 A. 324, 34 L. R. A. (N. S.) 1077, Ann. Cas. 1912D, 139 Rom v. Huber, 93 N. J. Law, 360, 108 A. 361 affirmed 94 N. J. Law, 258, 109 A. 504; Maphet v. Hudson & Manhattan R. R. Co., 98 N. J. Law, 369, 119 A. 777; Bodine v. Goerke Co., 102 N. J. Law, 642, 133 A. 295; Stark v. Great Atlantic & Pacific Tea Co., 102 N. J. Law, 694, 133 A. 172; and Taylor v. Roth & Co., 102 N. J. Law, 702, 133 A. 386, are cited; but an examination of such cases will clearly demonstrate their inapplicability. In not one of them was the question of structural defect or improper construction involved.

We find no error in this direction.

3. That the appellant, city, was not liable, because, as landlord, it was not liable to a third party for the ruinous condition of premises let to another.

Hereunder appellant looks for support to Naumberg v. Young, 44 N. J. Law, 331, 43 Am. Rep. 380, Murray v. Albertson, 50 N. J. Law, 167, 13 A. 394, 7 Am. St. Rep. 787. Siggins v. McGill, 72 N. J. Law, 263, 62 A. 411, 3 L. R. A. (N. S.) 316, 111 Am. St. Rep. 666, Reilly v. Feldman, 103 N. J. Law, 517, 138 A. 307, and Brown v. Webster Realty Co., 146 A. 671, 7 N. J. Misc. 587; but here, again, an examination of the cases will clearly show that they are not. authority for the proposition advanced by the appellant. In none of these cases was the premises designed...