Monaco v. Comfort Bus Line Inc. Stahl

• Decision Date: 04 October 1946
• Docket Number: Nos. 10, 11.,s. 10, 11.
• Citation: 49 A.2d 146,134 N.J.L. 553
• Parties: MONACO v. COMFORT BUS LINE, Inc., et al. STAHL v. SAME.
• Court: New Jersey Supreme Court

134 N.J.L. 553

49 A.2d 146

MONACO

v.COMFORT BUS LINE, Inc., et al.

STAHL

v.SAME.

Nos. 10, 11.

Court of Errors and Appeals of New Jersey.

Oct. 4, 1946.

On appeals from Supreme Court.

Actions by Joseph Monaco, administrator ad prosequendum of the estate of Mary Monaco, deceased, against Comfort Bus Line, Inc., a corporation, and County of Passaic and County of Bergen, jointly, severally, and in the alternative; and by Abe Stahl, administrator ad prosequendum of the estate of Lillian Stahl, deceased, against Comfort Bus Line, Inc., a corporation, and the County of Passaic, a body politic incorporate of the State of New Jersey. The actions were consolidated for trial. From a judgment directing a verdict in favor of defendants counties, plaintiffs appeal.

Judgments affirmed.

DONGES and PERSKIE, Justices, and DILL, Judge, dissenting.

Ward & McGinnis and Louis C. Friedman, all of Paterson (Peter J. McGinnis, of Paterson, of counsel), for appellants Joseph Monaco et al.

Feder & Rinzler, of Passaic (Jack Rinzler, of Passaic, of counsel), for appellant Abe Stahl et al.

Winne & Banta, of Hackensack (Walter G. Winne, of Hackensack, of counsel), for respondent County of Bergen.

Charles C. Stalter, of Paterson, for respondent County of Passaic.

John G. Dluhy, of Clifton, for John Olczak, et al., amici curiae.

David T. Wilentz, of Perth Amboy, Manfield G. Amlicke, of Passaic, Cole, Morrill & Nadell, of Paterson, Winthrop Watson, of Passaic, Davies & Davies, of Paterson, John O. McGuire, Joseph Teich, and Lee M. Skolkin, all of Passaic, August A. Azzolino, of Lade, and Riskin & Riskin, of Passaic, for other plaintiffs.

OLIPHANT, Justice.

These cases arose as the result of an automobile bus accident which occurred March 20, 1944, at 8:00 A. M. on the Market Street bridge over the Passaic River in which nineteen persons lost their lives.

The suits were brought by duly appointed administrators ad prosequendum against the Comfort Bus Line, Inc., the owner of the bus, and the Counties of Bergen and Passaic who had jointly constructed the bridge on which the bus was traveling. The cases, by order of the trial judge and with the consent of counsel for all parties, were consolidated for trial. This resulted in directed verdicts in favor of the respondents at the close of the case and of verdicts by the jury of no cause of action in favor of the Comfort Bus Line, Inc. against both plaintiffs. A new trial was granted the plaintiffs as against the bus line. These appeals are taken from the action of the trial court with respect to the suit against the two counties.

The facts, in brief, disclose the following with respect to the happening of the accident: The plaintiffs' intestates were passengers for hire on the bus which was proceeding over the bridge at a speed of from five to twenty-five miles per hour when it, without explanation as to cause, suddenly turned at a forty-five degree angle, mounted the curb and went over the pedestrian's sidewalk, struck a pedestrian on that sidewalk, crashed into the bridge rail and plunged into the river. The wheels of the bus were turning as it left the bridge and it was in second gear when raised from the river. At the time of the accident there was a slight fall of snow on the roadway. The bridge, construction of which was begun in 1929 and finished in 1931, was of the Rall bascule type and was about twenty feet above the water. It was composed of three sections, two of which were fixed spans, and a center one that was movable and could be raised like a cellar door. The roadway of the bridge used for vehicular traffic was thirty feet wide and on each side of this roadway, separated therefrom by a wooden curb, was a pedestrian sidewalk ten feet wide. On the outer side of each sidewalk was a guard rail. The standard specifications of the American Association of Highway Officials with respect to bridge construction called for a curbing at the side of the roadway 9' in height whereas the curb on this bridge was between 7 5/8? and 8 3/8?, and according to those same specifications the guard rail was deficient in strength. The bridge was designed to carry twenty ton trucks which it safely did. The bus involved in the accident weighed 12,600 pounds.

The complaint in each case charged the counties with negligence in the construction, erecting, rebuilding and repairing of the bridge with respect to the curb between the roadway and the pedestrian walk and also the guard rail, and appellants argue as there was testimony adduced that the curb and railing did not meet minimum standard construction requirements a fact question was presented which precluded a direction of a verdict in favor of the counties by the trial court. Each complaint also contained a count charging the counties with the construction and maintenance of a nuisance by reason of the character of the curb and guard rail of the bridge.

We conclude there was no error on the part of the trial court in directing the verdicts appealed from.

These causes of action arose solely by virtue of the provisions of R.S. 27:19-10, N.J.S.A. The trial judge acted properly under the facts in limiting the duty of respondents to that of constructing the bridge in a reasonably safe condition for ordinary public travel and eliminating from the case the question of its maintenance.

The original bridge act was that of November 5, 1798, entitled ‘An Act respecting bridges.’ Pat. p. 333. It provided for the building, rebuilding and repair of bridges between counties and this provision in substance has been carried into R.S. 27:19-1, N.J.S.A. This Act of 1798 appears, in ‘An Act respecting bridges,’ revision approved April 10, 1846 (Rev. 1846-7, p. 535), with slight amendments respecting the costs of erecting, rebuilding and repairing thereof.

In Board of Chosen Freeholders of Sussex County v. Strader, 18 N.J.L. 108, 35 Am.Dec. 530, decided in 1840, it was held that no action lies by an individual against a Board of Chosen Freeholders for injuries sustained in consequence of their not completing or keeping in repair a county bridge or abutments. This case was followed by that of Cooley v. Chosen Freeholders of Essex, 27 N.J.L. 415, which was decided in the February Term of 1859, and basing its decision on Freeholders v. Strader, supra, it was there held, in a suit by plaintiff to recover damages for an injury sustained by reason of an alleged defect in a public bridge, that ‘no action lies by an individual against the Board of Chosen Freeholders for injuries sustained in consequence of their not completing or keeping in repair a county bridge.'

Undoubtedly as the result of that case, the following year by Chap. 122 of the Laws of 1860, there was enacted a supplement to the act entitled ‘An Act respecting Bridges' approved April 10, 1846, which is the statute above referred to as appearing in the Revision of 1846-47. This supplement gives a right of action to one injured by the wrongful neglect of a Board of Freeholders to erect, rebuild or repair a bridge. This act appears as Sec. 1809 of ‘An Act concerning Counties,’ P.L. 1918, c. 185, and became 27:19-10 in the Revision...