Murphy v. City of Asbury Park, Civil Action No. 1926.

• Decision Date: 25 February 1943
• Docket Number: Civil Action No. 1926.
• Citation: 49 F. Supp. 39
• Parties: MURPHY v. CITY OF ASBURY PARK et al.
• Court: U.S. District Court — District of New Jersey

49 F. Supp. 39

MURPHY v. CITY OF ASBURY PARK et al.

Civil Action No. 1926.

District Court, D. New Jersey.

February 25, 1943.

Parsons, Labrecque & Borden, by Theodore D. Parsons, all of Red Bank, N. J., for plaintiff.

Joseph F. Mattice, of Asbury Park, N. J., for defendant City of Asbury Park.

FORMAN, District Judge.

The defendant, the City of Asbury Park, has moved for an order to set aside the verdict and the judgment entered against it and to have judgment entered in accordance with its motion for a directed verdict in its favor made at the trial of the case or, in the alternative, for a new trial.

Eleanor G. Murphy, plaintiff, sued the City of Asbury Park, Jersey Central Power & Light Company, John J. Bennett and Peter A. Bennett. At the conclusion of the plaintiff's case non-suits were granted the Jersey Central Power & Light Company and John J. Bennett. A judgment of $25,000 was entered in favor of the plaintiff against the City of Asbury Park and Peter A. Bennett.

The plaintiff had sustained serious injuries when the automobile in which she was riding in the early evening of January 20, 1940, driven by the defendant, Peter A. Bennett, collided with a concrete base of a light standard constructed in the center of Ocean Avenue in Asbury Park.

Ocean Avenue is a main thorough-fare in that city, running parallel with and close to the beach. It carries much of the Asbury Park vehicular traffic and pedestrians going to and coming from the beach cross the thorough-fare. In 1921 the Commissioners of the City of Asbury Park passed an ordinance purporting to provide for the installation of concrete bases for lighting standards in Ocean Avenue. There was testimony in the case that according to the recollection of one of the witnesses, about fifteen years prior to the trial (1942) the city undertook the installation of these concrete bases in the center of Ocean Avenue for a number of blocks of its length. Each base consisted of a cylindrical concrete form with a flared circular bottom about four feet in diameter. Each stood in height approximately three and one-half feet from the surface of the street. On top of each base, which was the smaller end, was affixed a vertical metal column rising approximately ten feet which terminated in a decorative electric lamp or lantern. Originally glass button reflectors were provided in the bases. The evidence showed that some of these reflector devices had been removed and some had been covered by paint or whitewash applied to bases.

On the trial, the plaintiff produced two qualified highway engineers who testified that the bases along Ocean Avenue had been improperly installed in a manner not in accordance with generally accepted good engineering practice of that time. They testified that the standard of safety for this type of installation in the center of a traveled highway required that the bases be surrounded by an island with curbing to protect travelers from the hazard formed by their obstruction of the center of the highway.

The city offered no proof and rested its defense upon the legal grounds that it was not liable in damages for injuries sustained by the plaintiff due to a collision with one of its light bases. It contended that the legislature of New Jersey had authorized the obstruction of the highway and had conferred upon the municipality the right to exercise its own judgment and discretion in the type of installation forming the obstruction. Acting upon such legislative authority, the city claimed it legally installed the electric light bases in accordance with legislative sanction, that it had been guilty of no act of wrongdoing and that a duty was implicit upon the plaintiff to take notice of the legislatively sanctioned obstruction and avoid it.

The plaintiff denied that legislative authority was granted the city to install obstructions of the nature in question and urged that the city was guilty of active wrongdoing in the construction of the bases in the traveled portion of Ocean Avenue and that the existence of general statutes to which the city referred did not excuse it of such active wrongdoing in the light of the circumstances under which this plaintiff met her injuries.

There was introduced in evidence ordinance of the City of Asbury Park, No. 335, of September 27, 1921,¹ which provided for sundry improvements to be made and their estimated costs, among which the city claimed was authority for installing the concrete bases in question. This authority flowed from a statute, according to the city, which gave it the right to establish safety zones, erect, construct and maintain platforms commonly called "safety aisles"; standards commonly called "silent policemen", beacon lights, guide-posts, and other structures which it deemed necessary for the safety and convenience of persons and vehicles using its streets. This statute became effective March 29, 1927.²

On December 6, 1927, the city passed another ordinance which provided for a bond issue, the proceeds of which were designed to liquidate the temporary indebtedness incurred by the city for the cost of improvements set forth in Ordinance No. 335, among which the city claimed was the construction of the lamp bases in question in this suit. This ordinance was No. 454.³

The city relied heavily upon two cases — Lorentz v. Public Service R. Co., 103 N. J.L. 104, 134 A. 818, 49 A.L.R. 989; and Delaware, L. & W. R. Co. v. Chiara, 3 Cir., 95 F.2d 663.

In the former an accident occurred in 1930 when the plaintiff was a passenger in an automobile that collided with one of the columns of the elevated structure of the defendant on Central Avenue in Jersey City. The plaintiff charged that the columns interfered with the free public passage of Central Avenue; that the structure and the place where the accident occurred were unlighted and that the column was maintained in a dirty condition so that it could not be seen readily. The trial court found a verdict for the plaintiff. This was reversed, the Court of Errors and Appeals considering a number of New Jersey cases and reaffirming the theory that the legislature had the power to legalize what would otherwise be a nuisance in the way of an obstruction of a public highway. It held that such a structure as was before it had been authorized by the legislature in 1886. Pursuant thereto Jersey City had permitted its construction by a duly passed ordinance. The Court held that neither the statute nor the ordinance made any requirement as to lighting and in the absence thereof declined to say that it was the duty of the defendant to light and clean the columns. It concluded that although the structure was a physical obstruction in the highway it was authorized by law and used to facilitate travel. Hence it was held not to be a nuisance and the public was obliged to take notice of it.

In the case of Delaware, L. & W. R. Co. v. Chiara, the court reviewed the Lorentz case and many New Jersey decisions involving claims for injuries received in connection with obstructions in highways allegedly installed by legislative authority. Chiara, the plaintiff in the case, sustained an injury in 1935 when the automobile in which he was a passenger ran into a concrete foundation serving as the base of the central support of the railroad bridge which also crossed a public street in Jersey City. The sole question presented was whether or not the structure was a lawful one. The Commissioners of Jersey City passed an ordinance August 28, 1928, authorizing the railroad company, in accordance with blueprints submitted by it, to build a bridge supported by circular concrete columns located along the center line of the street and along each proposed curbline. The center piers contemplated as support for the bridge were to be sunk into the surface of the street. Actually they were not constructed as provided by the ordinance because there were water mains and sewers at that point and they were made to rest upon the concrete foundation with which the automobile collided. In 1934 the railroad, aware that the bridge was not constructed in accordance with the authorizing ordinance, petitioned the Board of Commissioners to ratify and confirm the construction of the foundations of the center line columns of the bridge and to grant permission to maintain it as constructed. Such a ratifying ordinance was passed by the Commissioners of Jersey City. It was contended that the Commissioners were without power to ratify the structure and even if the bridge was constructed pursuant to the authorizing ordinance there was none the less a nuisance because it was not sanctioned by legislative authority. The Court held that the ratification by the city of the construction as installed was appropriate and legal and dismissed the first contention.

As to the second contention, the Court referred to the basic New Jersey law that any unlawful obstruction of a highway is prima facie a nuisance and the party responsible for it is liable in damages to one injured thereby, Durant v. Palmer, 29 N. J.L. 544, as well as the principle that the legislature may legalize what otherwise might be a nuisance, Lorentz v. Public Service R. Co., supra.

Chiara contended that the foundation supporting the center piers in the middle of the street was not authorized by law and in fact was within the specific prohibition of Section 27 of "An Act concerning railroads", N.J.P.L.1903, c. 257, p. 659, as amended, R.S.N.J.1937, 48:12-50, N.J.S.A. 48:12-50.⁴ It was urged that under this statute no railroad bridge whether purporting to be authorized by municipal authority or not could encroach upon the wagonway of a street. The railroad contended that its structure was authorized by Section 30, Chapter 145, page 377 of the Laws of New Jersey of 1925, R.S.N.J.1937, 48:12-79, N. J.S.A. 48:12-79.⁵ It submitted that Section 27 aforesaid authorized a railroad company to pass over any street by way of a bridge without specific...