Messier v. City of Clifton

• Decision Date: 22 December 1952
• Docket Number: No. A--329,A--329
• Citation: 93 A.2d 600,24 N.J.Super. 133
• Parties: MESSIER v. CITY OF CLIFTON et al.
• Court: New Jersey Superior Court — Appellate Division

Page 133

24 N.J.Super. 133

93 A.2d 600

MESSIER v. CITY OF CLIFTON et al.

No. A--329.

Superior Court of New Jersey Appellate Division.

Argued Sept. 22, 1952.

Decided Dec. 22, 1952.

Hyman W. Rosenthal, Paterson, argued the cause for the plaintiff-appellant (Marcus & Levy, Paterson, attorneys; Harry Chashin, Paterson, of counsel).

Harvey G. Stevenson, East Orange, argued the cause for the defendant-respondent City of Clifton (Stevenson, Willette & McDermitt, East Orange, attorneys).

George J. Gockeler, Newark, argued the cause for the defendant-respondent County of Passaic (Lahey & Gockeler, Newark, attorneys).

Richard Fryling, Newark, argued the cause for the defendant-respondent Public Service Electric & Gas Co. (Luke A. Kiernan, Jr., Newark, attorney).

Before Judges FREUND, STANTON and CONLON.

The opinion of the court was delivered by

FREUND, J.S.C. (temporarily assigned).

At about 2 A.M. on October 29, 1950, in fog and rain, the plaintiff Lauretta J. Messier was riding in an automobile owned and being operated by her husband, Alexander Messier, in an northerly direction along Randolph Avenue near Hamilton Avenue, in the City of Clifton, County of Passaic. The car was driven onto a parkway or safety isle in the center of the highway and collided with an unlighted electric light pole thereon, causing injuries to the plaintiff. Suit was brought against the city, the county and the Public Service Electric & Gas Company, hereinafter called Public Service. The trial court at the close of the plaintiff's case entered judgment in favor of all three defendants. On this appeal the plaintiff charges that the court erred in the entry of the judgment and in the exclusion from evidence of three letters from the Public Service to her husband.

Randolph Avenue is a public highway which, since 1898, has been under the joint control of the City of Clifton and the County of Passaic. The parkway isle divides traffic into two lanes, northbound and southbound, and begins where the collision occurred. In 1926, by agreement, the cost of repaving the street was shared by the city and the county, and at that time the City of Clifton authorized the erection of four stanchions on and along the parkway isle for the lighting of the highway. Upon completion of the work by the contractor, and approval by the city engineer, the city paid for the installation.

Under a street lighting contract with the City of Clifton, Public Service furnishes electricity for the four light poles. The agreement provides that the lamps shall be lighted continuously from dusk to dawn, that the failure of light be reported by municipal or Public Service inspectors, and that the poles and equipment be maintained by Public Service.

The lights on the parkway were the only lighting facilities in the area. The plaintiff's witness testified that the lights were out at 8:30 on the evening of October 28. The proofs disclose that Randolph Avenue south of Hamilton Avenue is about 30 feet wide; that at Hamilton Avenue it widens to about 45 feet, and that approximately 150 feet north of Hamilton Avenue it curves to the left and again widens into the dual-lane highway, each lane of which is over 25 feet in width and the parkway strip about 8 feet wide. Further, there was evidence that there were no signs or warning of the widening of the road, of the beginning of the parkway strip, or of the poles thereon; that the operator of the automobile was unfamiliar with the highway and that, as he approached the parkway, he was proceeding at a moderate rate of speed with his headlights lighted, and because of the poor visibility was driving approximately in the middle of the road, using the lefthand curb line as a guide. He testified that because of the curve and the widening of the roadway he suddenly found himself about to enter the southbound lane; to avoid that happening, he veered to the right, his car mounted the parkway strip and collided with the pole, causing injuries to his wife and damage to the pole.

After the accident Public Service made both temporary and permanent repairs to the pole and the fixtures. The plaintiff offered in evidence three letters written on the letterhead of Public Service and signed by George L. Walsh, its claim agent, addressed to and received by the plaintiff's husband, wherein he was requested to pay to Public Service $197.14 in reimbursement of 'the cost of repairing damage to our pole.' The purpose of the offer was to show possession and control of the pole by Public Service, which while not denying the authenticity of the signature of the writer of the letters, objected to their admission into evidence without proof of authority to bind the corporation, on the grounds of immateriality and irrelevancy. The court sustained the objection and the plaintiff charges error.

The action against the City of Clifton and the county of Passaic is based on the theory that, being in control of the highway, they had the duty to render it safe for travel from curb to curb; that it was their primary and nondelegable duty to light the highway; that the construction of the parkway isle and the stanchions thereon constituted an obstruction; and the failure to light and warn of their presence created a nuisance, constituting active wrongdoing. The theory of the cause of action against Public Service is that apart from the street lighting contract with the city, Public Service had assumed control of the pole with which the automobile collided, and was negligent and created a nuisance by its failure to light or warn of its presence.

First, we shall deal with the case against the city and the county. It is settled that 'the street, and every part of it, by force of the common law, is so far dedicated to the public that any act or obstruction that unnecessarily incommodes or impedes its lawful use by the public is a nuisance.' Durant v. Palmer, 29 N.J.L. 544 (E. & A.1862); Saco v. Hall,1 N.J. 377, 382, 63 A.2d 887 (1949). The essential question is whether the parkway in the center of the highway is an obstruction. If so, then the failure to light might constitute the maintenance of a nuisance and active wrongdoing, or positive misfeasance, for which the municipalities could be held accountable. But, if it is not an obstruction, then the failure to light would amount to mere nonfeasance or neglect, for which a municipality is not liable. Hart v. Union County, 57 N.J.L. 90, 29 A. 490 (Sup.Ct.1894); Cochran v. Public Service Elec. Co., 97 N.J.L. 480, 117 A. 620 (E. & A.1922); Buffington v. Atlantic County, 167 A. 527, 11 N.J.Misc. 443 (Sup.Ct.1933); Allas v. Rumson, 115 N.J.L. 593, 181 A. 175, 102 A.L.R. 648 (E. & A.1935); Hammond v. County of Monmouth, 117 N.J.L. 11, 186 A. 452 (Sup.Ct.1936); Fisher v. Nutley, 120 N.J.L. 290, 199 A. 40 (E. & A.1938); Fay v. Trenton, 126 N.J.L. 52, 18 A.2d 66 (E. & A.1940); Laub v. Camden, 126 N.J.L. 448, 20 A.2d 348 (Sup.Ct.1941); Reardon v. Wanaque, 129 N.J.L. 18, 28 A.2d 54 (Sup.Ct.1942), 132 N.J.L. 536, 41 A.2d 379 (Sup.Ct.1945); Truhlar v. Borough of East Paterson, 4 N.J. 490, 73 A.2d 163 (1950); Milstrey v. City of Hackensack, 8 N.J.Super. 221, 73 A.2d 747 (App.Div.1950), affirmed 6 N.J. 400, 79 A.2d 37 (1951); Kress v. City of Newark, 8 N.J. 562, 86 A.2d 185 (1952); Johnson v. Board of Chosen Freeholders, Monmouth, 21 N.J.Super. 569, 91 A.2d 580 (App.Div.1952).

The plaintiff argues that the parkway is an obstruction, and the failure to light it an act of wrongdoing. The respondents contend that the parkway could not be considered an obstruction and the failure to light it was merely an act of nonfeasance for which they could not be held liable. Assuredly, the construction of a parkway strip in the center of a highway does not Per se create a public nuisance, but subsequent conditions reasonably foreseeable when the parkway was constructed might make it so. Dual highways dividing lanes of traffic are now in the interest of the safety of the travelling public, common construction; but the...