Milstrey v. City of Hackensack

• Decision Date: 26 February 1951
• Docket Number: No. A--52,A--52
• Citation: 6 N.J. 400,79 A.2d 37
• Parties: MILSTREY et al. v. CITY OF HACKENSACK et al.
• Court: New Jersey Supreme Court

Page 400

6 N.J. 400

79 A.2d 37

MILSTREY et al. v. CITY OF HACKENSACK et al.

No. A--52.

Supreme Court of New Jersey.

Argued Dec. 4, 1950.

Decided Feb. 26, 1951.

Ralph W. Chandless Hackensack, argued the cause for appellants, Chandless, Weller, Kramer & Frank, Hackensack, attorneys.

George F. Losche, Hackensack, argued the cause for respondents.

The opinion of the court was delivered by

HEHER, J.

Clarisse Milstrey seeks damages for personal injuries resulting from a fall on a public sidewalk of Main Street in Hackensack, New Jersey, at the southwest corner of Mercer Street. Her husband sues Per quod. The municipality and its director of public works and engineer, Fishbough, are charged with negligence and the maintenance of a nuisance. There was a jury verdict for the plaintiffs against both defendants; and the judgment thereon was sustained by the Appellate Division of the Superior Court. 8 N.J.Super. 221, 73 A.2d 747. We certified the cause for appeal on defendants' petition.

This is the factual situation: On October 5, 1948, in midafternoon, Clarisse's heel 'caught' in a broken and depressed side-walk surface, six or seven feet from the curb, as she proceeded on a shopping tour, and she fell violently. There can be no doubt that the sidewalk at this point was perilous to travellers. It was 'broken in spots' and there was 'quite a hole in it--about an inch and a half of two-inch depression,' or so the jury might find from the testimony. The question is whether this was an actionable fault attributable to defendants. There was a Whelan drug store in the first-floor corner premises. The sidewalk was constructed of concrete. Some twenty and a half months before, on January 16, 1947, the defendant Fishbough, acting for the municipality, opened the concrete sidewalk and dug a trench to contain a conduit for the operation of intersectional traffic signals and, after the installation was made, 'refilled' the excavation with the broken concrete, which was 'rammed down' as a base, and then resurfaced the area with a paving composition known as 'blacktop' or 'roadrite,' 'even with' the surrounding concrete pavement. The patched surface was triangular in shape--the long side nine feet, the short side four feet, and the hypotenuse a 'curved, rounded corner.' This surface disintegrated, while the adjoining pavement remained firm and unbroken, and the ultimate result was the sunken and broken area constituting a constant menace to travellers. The photographic evidence reveals a dangerous condition of long standing; it was not of recent origin.

The complaint alleges that the patched area was 'so far out of alignment with the true pavement level as to constitute a danger in its use and a nuisance.' But the case was tried on the theory that blacktop is not adapted to the mending of concrete sidewalks and that either because of its unsuitability or negligence in the doing of the work, or both, there was here a subsidence and a breaking of the surface which caused the injury in suit. The point of variance between the Allegata and the Probata was not made; and it cannot now be raised for the first time. Miller v. Stieglitz, 113 N.J.L. 40, 172 A. 57 (E. & A. 1934).

The jury could well have found negligence giving rise to a public nuisance in the course taken here. Certainly, that would be so if the condition responsible for the injury had existed from the beginning; it is nonetheless so because the nuisance did not materialize until later, if that was a reasonably foreseeable eventuality. It was an affirmative act of wrongdoing grounded in negligent construction and a nuisance in legal intendment, actionable when special injury ensued.

Blacktop is a bituminous and stone composition with substantially less resistance than concrete, and therefore less durable than concrete. The city's foreman on the replacement work testified that blacktop is not 'as good as concrete,' and 'doesn't last as long as concrete,' but 'will last for four or five years.' He acknowledged that the city 'usually' employed concrete in the repair of a concrete sidewalk 'when it is a big job.' Another witness, Simpson, a road supervisor for the Public Service Interstate Transportation Company, whose duties required almost daily attendance at the locus during the period in question, testified that this was one of the busiest intersections in Hackensack; that 'in the beginning, after the (replacement) job was done, it was a perfectly smooth surface,' but that 'as time went on the depression began to take form;' that he did not know 'how long it was until it had sunken a little or worn away, or whatever it was, but it was noticeable.' The defendant Fishbough, who supervised the particular project and the sidewalk reconstruction for the municipality, also described the locus as 'the busiest part of the city.' He conceded that blacktop is 'not as hard as concrete,' and that, while it is used for patching roads and also for sidewalks 'in some places,' the city 'prefers concrete sidewalks, because most of them are concrete, and for the sake of uniformity; but it is permissible to make driveway aprons of it (blacktop), and places like that, which is the same thing.' He said that at the time of the mishap here, the patched surface 'was worn down possibly a quarter, or not over 3/8 of an inch;' and it was then decided that 'to make a nice job, a good job of it, we would dig out the bituminous concrete and put concrete in and make the sidewalk uniform at that point,' which he 'accordingly had done.' He described the condition of the patched area at the time as 'slightly concave,' due to 'wear and tear' rather than ground subsidence. But he admitted the force of the photographic representation of the locus; he sought to minimize it as not a 'true picture,' but an exaggeration due to the 'shadows' attending the taking of the picture on 'a wet day.'

Plaintiff adduced expert opinion evidence that the reconstruction of the sidewalk was structurally substandard, in that blacktop is much less resistant than concrete and it is impossible to guard against destructive water seepage.

Thus, there was evidence tending to show a subsidence and breaking of the sidewalk surface due to the use of unsuitable material and the mode and manner of construction, and therefore a misfeasance chargeable to the municipality. The disintegration of the patchwork was reasonably forseeable as a consequence of the structural deficiency, and so there was an unreasonable risk of harm which rendered it a nuisance attributable to the municipality when the danger materialized, actionable as such at the suit of one who thereby sustained special and peculiar damage distinct from the general inconvenience suffered in common with the public at large. It does not matter that the faulty construction did not give rise to an immediate hazard. That would be an illusory distinction at variance with the principle. Where a nuisance as a consequence of the thing done is within the realm of reasonable foresight, the author is liable as the creator of the nuisance when the danger comes into being. It is elementary that if because of defective construction the site of the patchwork would in all human likelihood become a place of danger, the resultant condition constitutes a common nuisance attributable to the original wrong. There was danger in unreasonable degree, not in keeping with the standard of care imposed by the law for the protection of travellers against unreasonable risk of harm. Restatement, Torts, section 282. The risk was reasonably perceptible at the time of the doing of the work, and so the act was wrongful and actionable when the foreseeable condition became a reality and resulted in special and particular damage.

The danger arose from nuisance, even though a nuisance growing out of negligence. While nuisance in its primary signification does not involve the element of negligence as one of its essential factors, a continuous threat to the public by an obstruction or dangerous condition in a highway constitutes a common nuisance, though dependent upon negligence. McFarlane v. City of Niagara Falls, 247 N.Y. 340, 160 N.E. 391, 392, 57 A.L.R. 1 (1928).

A nuisance to a highway consists either in obstructing it or rendering it dangerous. Salmond on Torts (10th ed.) sections 53, 69. One of the most familiar instances of nuisance is a highway 'out of repair.' McFarlane v. City of Niagara Falls, supra. At common law, the duty of repairing highways rested upon the inhabitants of the parish, and was enforceable by indictment only, and not by way of action at the suit of an individual, even though he had suffered special damage; and the same rule of exemption applied when the care of highways was transferred by statute to corporate local authorities. A transfer of the duty of repair of roads from the inhabitants at large to a body corporate does not change its nature. After long controversy, the modern authorities in England hold that the transfer does not of itself render the corporation liable to an action for damages for nonfeasance as distinguished from misfeasance, unless so provided by statute. Guilfoyle v. Port of London Authority (1932) 1 K.B. 336.

The soundness of this immunity from liability under the common law for mere passive nonfeasance--mere omission to repair--has long been the subject of controversy among the English judges; and it was deemed 'unsatisfactory' by Humphrey, J. in the Guilfoyle case, supra, decided in 1932. But the exemption does not extend to an active misfeasance--a positive act by which a danger is wrongfully caused in the highway and by which the plaintiff has come to harm. Local authorities are saved from civil liability for merely failing to do what ought to have been done, but are liable at common law for doing that which ought not to have been done. Russell v. Men of Devon (1788) 2 Term.Rep. 667; Foreman v. Mayor of Canterbury (1871) L.R. 6 Q.B. 214; ...