McManus v. New Jersey Water Co.

• Decision Date: 27 October 1952
• Docket Number: No. A--483,A--483
• Parties: McMANUS v. NEW JERSEY WATER CO.
• Court: New Jersey Superior Court — Appellate Division

Page 253

22 N.J.Super. 253

91 A.2d 868

McMANUS v. NEW JERSEY WATER CO.

No. A--483.

Superior Court of New Jersey Appellate Division.

Argued Oct. 6, 1952.

Decided Oct. 27, 1952.

Carl Kisselman, Camden, for plaintiff-respondent (Bruce A. Wallace, Camden, attorney).

William S. Zink, Camden, for defendant-appellant (Bleakly, Stockwell & Zink, Camden, attorneys).

Before Judges EASTWOOD, GOLDMANN and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.C.C. (temporarily assigned).

Respondent was awarded a verdict of $28,500 for the death of her husband, which the jury found had been caused by appellant's tortious conduct. Reduction to $25,000 was ordered because that sum was the limit sought by the Ad damnum clause of the complaint. An additional motion seeking further decrease on the ground of excessiveness was denied. The appeal now presented charges that the trial court should have granted the motion for dismissal and that the verdict is contrary to the weight of the evidence and excessive.

The mishap out of which this action arose is an unusual one. The proof thereof and of the causal relation between it and decedent's death was largely circumstantial in character.

The incident took place on December 13, 1950 in the early hours of the morning at the southwest corner of Nicholson Road and Wyoming Avenue, in Audubon, New Jersey. Nicholson Road runs east and west; Wyoming Avenue runs north and south, intersects Nicholson on the south side thereof and dead-ends there. On the north side of Nicholson Road some distance west of what would be the northwest corner, if Wyoming Avenue continued north beyond the intersection, there was an overhead street light. On the south side of Nicholson Road from its intersection with White Horse Pike, which is two-fifths of a mile to the east, a continuous pedestrian sidewalk had been constructed. This sidewalk continued to the west to and beyond Central Avenue, which is two blocks west of Nicholson Road. On the north side of Nicholson Road from White Horse Pike the pedestrian sidewalk existed only at intervals.

On the south side of Nicholson Road there was a grass plot between the sidewalk and the curb. At the southwest corner of Nicholson Road and Wyoming Avenue the sidewalk on Nicholson Road continued directly to the curb so that it crossed the grass plot on Wyoming Avenue; the walk on Wyoming Avenue did the same, thus crossing the grass plot on Nicholson Road. These sections of sidewalk were called park strips. There was a telephone pole in the grass plot on Wyoming Avenue about two feet from the southerly edge of the more easterly park strip.

The decedent, Frank B. McManus, lived on Central Avenue, his house being on the east side thereof and to the south of Nicholson. At the time of his death he was employed as a salesman in the John Wanamaker Store in Philadelphia. There were two bus routes available to him to get to and from his place of business. One of them necessitated taking and being discharged from the bus at Nicholson Road and White Horse Pike. He took advantage of both routes but used the Nicholson Road-White Horse Pike route more often on the return trip home than he did in the morning. On such occasions he reached home by walking up Nicholson Road. He enjoyed the outdoors and according to his widow was a 'very quick walker.'

Appellant company had learned of a water leak around the southwest corner of Nicholson Road and Wyoming Avenue and on December 7, 1951 began exploratory excavations in that area. On December 8 two holes were dug in Nicholson Road at the corner and one was filled up. The one remaining was about opposite the east park strip and a few feet to the north. On the same day this east park strip was removed and placed at the curb line in the gutter on the westerly side of Wyoming Avenue. In this position it would be directly in the path of a westbound pedestrian who was crossing Wyoming Avenue and about to step up from the street to the sidewalk at the southwest corner. The removal of the park strip created a depression and an unevenness in the sidewalk, but between the southerly edge of this condition and the telephone pole already referred to the grass strip was untouched for about two feet. Then, also on the same day, appellant's workmen dug an excavation from the curb line on Nicholson Road at the southwest corner extending in a southerly direction into the park strip and partially into the area which had been covered by the removed section of sidewalk. This ditch was four feet, three inches long, paralleling the westerly curb line of Wyoming Avenue, two feet wide, and four feet, eight inches deep, and the leaking pipe was located therein. The fill from these excavations was piled in two large piles, one in Nicholson Road immediately adjacent to and west of the ditch, the other on the Wyoming Avenue park strip and sidewalk of Nicholson Road. The oral testimony and the pictures of the scene show that there was debris scattered generally around the corner and in and about the path of pedestrians crossing Wyoming Avenue on Nicholson Road.

The work continued at this point through December 13 when the accident happened. December 9 and 10 were Saturday and Sunday and nothing was done on those days except the checking of certain bomb flares which had been deposited at the site.

At no time were barriers of any kind posted around the excavations or the depressed area where the park strip was removed; no planks or other covering were placed over them; and there were no signs or warnings of any kind posted anywhere near the scene. The workmen placed four kerosene bomb flares, of a familiar type, at various locations and these remained burning all night. The proof shows that they were burning on the late afternoon of December 12; also that flames from them were seen about 5:30 a.m. of December 13, although the witness did not attempt to ascertain the number that then were burning, and that all of them were burning after the decedent's body was discovered. No affirmative evidence was introduced to establish that they or any of them were out during the night of December 12 or the early morning of the 13th.

One flare was located on top of the pile of dirt on Nicholson Road; the second about at the north corner of the street excavation in Nicholson Road; the third on the sidewalk at the southeasterly edge of the pile of dirt located there; and the fourth on Wyoming Avenue about alongside of the northeasterly corner of the stone slab which had been deposited in the gutter.

Between 2:30 and 2:45 on the morning of December 13 the decedent was seen to alight from a bus on the Camden side of the intersection of White Horse Pike and Nicholon Road. No one saw him after that until at about 7:30 a.m.; his body was found head down in the excavation in the park strip at the northwest corner of Nicholson Road and Wyoming Avenue.

Autopsy showed that death was due to a cardiac tamponade produced by the rupture of a vein in the anterior portion of the right atrium of the heart. And medical evidence was offered to the effect that the fall into the ditch caused the rupture.

The only external signs of injury were an abrasion on the shin of each leg. All of decedent's organs were normal and there is no proof in the record of alcohol in his stomach or brain. According to his widow he had been in good health and had suffered from no serious illness of any kind. And the assistant county physician who performed the autopsy declared on the basis of the appearance of the leg abrasions that McManus was alive when he fell into the hole.

On these proofs appellant contends that the trial court should have granted the motion for judgment in its favor.

The action was based upon charges of negligence and nuisance. As to both of these causes clearly a jury question was made out. One who creates a temporary obstruction or excavation in a public sidewalk or a public highway, or so close thereto as to constitute a hazard to the traveling public, is under the duty of giving warning or notice of the presence of such obstruction or excavation. Failure to use reasonable care in the giving of warning or notice thereof renders such person answerable to a user of the public way who receives injury as the direct and proximate result of the obstruction or excavation. Hedges v. Housing Authority, 21 N.J.Super. 167, 91 A.2d 88 (App.Div.1952); Reilly v. B. S. Janney, Jr., & Co., 103 N.J.L. 11, 135 A. 66 (Sup.Ct.1926); Sutphen v. V. J. Hedden & Sons, 67 N.J.L. 324, 51 A. 721 (E. & A.1902); Fox v. Wharton, 64 N.J.L. 453, 45 A. 793 (Sup.Ct.1900); Thomas v. Consolidated Traction Co., 62 N.J.L. 36, 42 A. 1061 (Sup.Ct.1898); Daneck v. Pennsylvania R.R. Co., 59 N.J.L. 415, 37 A. 59 (E. & A.1896); Restatement, Torts, sec. 368.

While the water company's workmen placed lighted flares in the area in the manner described, the adequacy of them in the discharge of its duty under the circumstances presented was certainly a matter upon which the minds of reasonable men might differ. This is particularly so in the light of the testimony that accepted and standard practice required barriers and planking. In fact, although appellant's superintendent, who was in charge of this operation, would not admit that these additional precautionary measures were customary practice, he conceded that they were 'possibly good practice.' As the Court of Errors and Appeals said in Sutphen v. Hedden, supra (67 N.J.L. 324, 51 A. 722):

'Doubtless in many instances a warning by a light or other signal at the point of danger would fill the requirement of duty, while in others, particularly where a concurring cause contributes to the accident, an enclosure or barrier would become necessary. And, of course, whether in a given case the one or the other method of guarding against danger would be a sufficient compliance with the required duty is a question for the jury.'

Basically appellant's position is that the...