Mount v. Recka, A--159

• Decision Date: 12 May 1955
• Docket Number: No. A--159,A--159
• Citation: 114 A.2d 289,35 N.J.Super. 374
• Parties: Olivia MOUNT and Lawrence Mount, her husband, Plaintiffs-Appellants, v. John Joseph RECKA and Jersey City, a municipal corporation, Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 374

35 N.J.Super. 374

114 A.2d 289

Olivia MOUNT and Lawrence Mount, her husband, Plaintiffs-Appellants, v. John Joseph RECKA and Jersey City, a municipal corporation Defendants-Respondents.

No. A--159.

Superior Court of New Jersey.

Appellate Division.

Argued April 25, 1955.

Decided May 12, 1955.

Raymond Chasan, Jersey City, argued the cause for appellants.

Emil W. A. Schumann, Jersey City, argued the cause for respondent Recka.

Robert J. Rubacky, Jersey City, argued the cause for respondent Jersey City (John B. Graf, Jersey City, attorney).

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

JAYNE, J.A.D.

The trial of this case was terminated by a judgment of the court directing the involuntary dismissal of the plaintiffs' alleged causes of action against both defendants. The plaintiffs respectfully protest.

In undertaking our appellate consideration of the factual and legal justification for the judgment, it is methodical to examine all of the evidence which contributes support to the allegations of the plaintiffs and also to heed all of the fortifying inferences and deductions that can logically and legitimately be derived from such evidence. McKinney v. Public Service Interstate Transp. Co., 4 N.J. 229, 243, 72 A.2d 326 (1950); Vadurro v. Yellow Cab Co. of Camden, 6 N.J. 102, 106, 77 A.2d 459 (1950); O'Donnell v. Asplundh Tree Expert Co., 13 N.J. 319, 328, 99 A.2d 577 (1953); Gentile v. Public Service Coordinated Transport, 12 N.J.Super. 45, 49, 78 A.2d 915 (App.Div.1951); Silverstein v. Dohoney, 32 N.J.Super. 357, 362, 108 A.2d 451 (App.Div.1954).

From the evidence and its derivative inferences the following narrative of the relevant sequence of events and circumstances is composed.

Many years ago, perhaps in 1908, the City of Jersey City established a department of its municipal government known as the shade tree bureau under the supervision of one designated as the city forester. It has been the function of the bureau to plant and replace as conditions favored or as occasions required shade trees at suitable locations along the streets of the city. The service rendered by the bureau has been known by the inhabitants of the city, who commonly address to the bureau their requests for the planting of shade trees in front of their respective properties and also for the removal of dead trees and their replacement with live ones. The bureau maintains records disclosing the dates and the names of the persons making such requests, the locations of the properties, and the nature and specific time of its operations and by whom performed.

We are informed that the city has not created by ordinance a shade tree commission pursuant to N.J.S.A. 40:64--1. However, it may be inferred from the testimony of the city forester that the bureau has upon request and indeed upon its own volition assumed for many years as a public service the planting, removal, and replanting of shade and ornamental trees along the streets of the city.

Moreover, an ordinance seems to have been adopted by the governing body of the city which originated the bureau, declared its functions, and conferred upon the city forester the authority he exercises, but unfortunately the ordinance was not admitted in evidence, and we are accordingly unaware of the precise scope of its terms relating to the city's control over such trees.

However, we notice the following admission embodied in the pretrial order:

'Deft. Jersey City, a municipal corporation of N.J. admits it is a municipal corporation and that the Jersey City Shade Tree Bureau was duly organized as an agency of or department of Jersey City, non-profit, with certain defined duties created by ordinance * * *.'

The Legislature has for a period of many years vested in the municipalities the power and authority to control for the public benefit the planting and preservation of shade trees along their streets and avenues.

In the pursuit of its service the bureau some time in the year 1947 planted two trees in front of the premises identified as No. 318 Randolph Avenue, which property is at present owned by the defendant John Joseph Recka. In 1951 Recka's predecessor in title contructed a concrete sidewalk extending from the front property line to the curb, leaving, however, in it two circular openings around each of the two trees, obviously for the purpose of affording air and moisture to the roots of the trees. Such a sidewalk construction is conventional, and it is not intimated that it was hazardous or structurally improper.

The records of the bureau disclose that on May 13, 1952 a request, No. 1819, was received from Recka by telephone for an inspection of the two trees. The trees had evidently died, and among the bureau records is found request No. 2048 from Recka dated June 17, 1952 on which under the title 'Nature of Work' on the printed form appear in handwriting the words 'Remove 2 young dead trees.' The foreman's report thereon designed to state the name of the foreman, the nature of the services performed and when rendered, reveals that the two trees were removed by the bureau on February 20, 1953. The notation reads: 'Removed 2 young N. maple trees. Please replace them.'

The trees were extracted by the so-called root method, which necessarily loosens the soil in which they are embedded. The acknowledged fact is that the trees were removed by the city bureau at a time during which the bureau did not have available any trees suitable for the intended replacement.

Time passed. The trees removed were not replaced. The surface of the soil in one of the openings with which we are here concerned where the tree had previously been located was on August 7, 1953 a distance of from six to eight inches beneath the surface of the surrounding sidewalk and the depression was concealed by the growth therein of vegetation to a height above the sidewalk level. The photographic exhibits are illustrative.

At about four o'clock in the afternoon of August 7, 1953 the plaintiff Olivia Mount, a married woman 51 years of age, while walking on the sidewalk in front of the Recka property, stepped into the concavity so described, was thereby overthrown and sustained consequential bodily injuries.

In further observance of the files of the bureau, a memorandum entitled 'Shade Tree Bureau Emergency Report' appears which designates the Recka property and contains the following instruction and a report of its fulfillment: 'Remove weed growth from 2 tree replacement areas & fill flush with level of sidewalk, pack in to avoid settlement. Date, 11/5/53. No charge for this work.' 'Remarks--Filled in 2 replacement areas with soil to level of sidewalk. 11/10/53.' Twenty days later the bureau substituted trees for those it had removed.

The aforementioned events and associated circumstances seem to compose the acknowledged factual structure underlying the respective motions for the invountary dismissals.

The plaintiffs feel that they have been mistakenly frustrated in their endeavor to recover compensatory damages for their injuries and losses because of the trial court's determination that neither defendant is in the circumstances legally responsible to them for the injurious consequences.

The genesis of our law pertaining to streets and sidewalks is in its fundamental respects derived from the principles of the early English common law. The present significance of that historical observation is that the basic concept of the law has traditionally placed the primary responsibility for the construction and maintenance of streets and sidewalks on the government and has recognized a distinction between the related duties of the municipal government and those of an abutting owner. Vide, Weller v. McCormick, 47 N.J.L. 397, 1 A. 516 (Sup.Ct.1885); Rupp v. Burgess, 70 N.J.L. 7, 56 A. 166 (Sup.Ct.1903). But see dissenting opinion of Mr. Justice Jacobs in Moskowitz v. Herman, 16 N.J. 223, at page 226, 108 A.2d 426 (1954).

A sidewalk has been generally regarded and defined as that portion or margin of the street between the curb line and the adjacent property line. See, for example, N.J.S.A. 39:1--1; 25 Am.Jur. 343.

At the common law and in the absence of a compulsory statute or ordinance, the abutting owner is not obligated to build a sidewalk in front of his property. If, however, he chooses to do so, he must exercise ordinary care to construct the walkway in such a manner as to render it reasonably safe for the uses of public passage, and if he disregards that duty, thereby originating and continuing a condition endangering the safety of pedestrians passing over it, he may in the circumstances be responsible in the law for the creation, and he and his successors in title for the maintenance, of a nuisance in the public street. Cf. Braelow v. Klein, 100 N.J.L. 156, 125 A. 103 (E. & A.1924); Fasano v. Prudential Insurance Co., 117 N.J.L. 539, 190 A. 319 (Sup.Ct.1937).

And so also for the lack of due care in undertaking to repair a defective condition in the sidewalk for which he is not otherwise responsible. McHugh v. Hawthorne Building & Loan Ass'n, 118 N.J.L. 78, 191 A. 548 (Sup.Ct.1937); Istvan v. Engelhardt, 131 N.J.L. 9, 34 A.2d 242 (Sup.Ct.1943); Snidman v. Dorfman, 7 N.J.Super. 207, 72 A.2d 795 (App.Div.1950). But in the present case there is no proof whatever that the cement...