Murphy v. Bd. of Chosen Freeholders of Mercer County

• Decision Date: 31 December 1894
• Parties: MURPHY v. BOARD OF CHOSEN FREEHOLDERS OF MERCER COUNTY.
• Court: New Jersey Supreme Court

31 A. 229

57 N.J.L. 215

MURPHY

v. BOARD OF CHOSEN FREEHOLDERS OF MERCER COUNTY.

Supreme Court of New Jersey.

Dec. 31, 1894.

(Syllabus by the Court.)

Action by Catharine Murphy, administratrix, against the board of chosen freeholders of the county of Mercer. Demurrer to declaration overruled.

Argued at February term, 1894, before the CHIEF JUSTICE, and VAN SYCKEL, GARRISON, and LIPPINCOTT, JJ.

W. D. Holt, for plaintiff.

Edwin Robert Walker, for defendant.

LIPPINCOTT, J. This is a suit by the plaintiff, as administratrix of her deceased husband, against the defendant, to recover damages for his death, alleged to have arisen by reason of the negligence of the defendant as a public corporation. The declaration avers that on the 31st day of October, 1891, the deceased, while a traveler on Olden avenue, in the city of Trenton, passed off a drawbridge maintained by the defendant on said avenue, which is a public street or highway over the Delaware & Raritan Canal, and fell Into the canal, and was drowned; and that the cause of such death was that the said bridge was so constructed and maintained that the connection formed by the bridge (said bridge when closed forming a part of the highway across said canal) between the two parts of Olden avenue became and was removed, and that, when said bridge was swung around to allow such vessels as navigated the canal to pass, part of the said bridge projected over the water in said canal, so that passengers on the said part of the said bridge passing towards the said canal, if they passed to and off the end of the said part over the said canal would fall into the canal, and that the said defendant in the nighttime, when the said bridge was opened for vessels to pass the said bridge, negligently suffered the end of said bridge, where it projected over the said canal, to be without a parapet, railing, fence, or contrivance to prevent persons passing along and over said bridge, towards the said canal, from passing off the same into said canal, and without any light, watch, or contrivance to warn persons passing along and over said bridge, and along said highway, of the disconnection of the said bridge and the said highway, caused by the opening of said bridge, by means whereof the decedent, on October 31, 1891, passed to the end and off the said part of said bridge into the said canal, and was thereby drowned. The defendant demurs to the declaration upon two' grounds: First, that in form the declaration does not state a cause of action; and, secondly, upon the ground that the defendant, being a public corporation, is not liable for damages arising from an immediate death resulting from the negligent conduct of such corporation.

It is clear that it was the duty of the board of chosen freeholders of the county of Mercer to construct, maintain, and keep this bridge over this canal in a safe condition for public travel over it. This is conceded by the defendant. The general statute (Revision, p. 86, § 9) provides that "in all cases where a township or the board of chosen freeholders of a county are chargeable by law with the erection, rebuilding, or repair of any bridge or bridges, and the said township, or board of chosen freeholders shall wrongfully neglect to erect, rebuild, repair the same, by reason whereof any person or persons shall receive injury or damage in his or their persons or property, he or they may bring his or their action of trespass on the case against the said township, or said board of chosen freeholders, as the case may be, and recover judgment against them to the extent of all such damage, sustained as aforesaid, which said judgment shall be paid by the township or county as the case may be." Under this statute, the defendant would be liable for neglect in the erection or rebuilding of said bridge, and also under this act liable for any negligent want of repair, or for any neglect to keep the same in a safe condition for public travel. The declaration here shows the respect in which the defendant neglected to keep the bridge in a safe condition, and whether that negligence consisted in a faulty construction of the structure or want of proper repair would be of little materiality, save in the manner of proof to demonstrate the nature of the negligent conduct of the defendant; therefore no question arises here in relation to the duty of the defendant to construct and maintain this bridge in a safe condition for public travel. The defendant, as a public corporation, was bound to build, rebuild, and keep in repair this bridge with a view to the safety of persons and property, and its liability for damages ensued whenever it neglected the duty imposed upon it by the statute. It has been held that it is not necessary that actual notice should have been given of the unsafe condition of a bridge to the authorities charged with the duty of its repair, or that they should have actual knowledge of the dangerous condition of the bridge, in order that liability to damages be established. If it was originally a faulty or negligent construction, the defendant would have been responsible, without other notice; and. if a repair was necessary in order to render it safe, the defendant was bound by the rule of law that if, by the exercise of ordinary care and due diligence, the defect could have been discovered, it is sufficient to cause liability for damages by reason of the neglect to repair. Ripley v. Freeholders, 40 N. J. Law, 45; Jernee v. Freeholders Monmouth Co., 52 N.J. Law, 553, 21 Atl. 295; Freeholders of Morris Co. v. Hough, 55 N. J. Law, 628, 28 Atl. 86, and cases cite...