Murphy v. Fair Oaks Sanatorium

• Decision Date: 19 September 1941
• Docket Number: No. 2.,2.
• Citation: 21 A.2d 806,127 N.J.L. 255
• Parties: MURPHY v. FAIR OAKS SANATORIUM.
• Court: New Jersey Supreme Court

21 A.2d 806

127 N.J.L. 255

MURPHY

v. FAIR OAKS SANATORIUM.

No. 2.

Court of Errors and Appeals of New Jersey.

Sept. 19, 1941.

Appeal from Circuit Court, Union County.

Action by Josephine M. Murphy against the Fair Oaks Sanatorium, a corporation of the state of New Jersey, for personal injuries. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

George W. V. Moy, of Plainfield, for appellant.

Connolly & Hueston, of Elizabeth, for respondent.

WELLS, Judge.

The plaintiff brought her suit in the Union County Circuit Court to recover damages from the defendant as owner of premises known as No. 33 Prospect Street, Summit, N. J., for personal injuries sustained by her as a result of falling on the sidewalk adjacent to said premises, caused by her catching her foot in the edge of a hole in the sidewalk. The trial resulted in a nonsuit, which is alleged as error and the sole ground of appeal.

The first count of the complaint alleges that the defendant negligently permitted the sidewalk to get out of repair and failed to repair it; and that it was of "faulty construction, dangerous, precarious and hazardous condition, which caused plaintiff to fall to the ground" &c. The second count was substantially the same, with the addition that it alleged that the conduct of the defendant "constituted a nuisance to the public as a whole and to any person or persons lawfully using the said sidewalk as a thoroughfare." The plaintiff was the only witness to testify to the facts of the happening of the accident. She said that on the day in question, between 9 and 11 A. M. she came from her residence which adjoined defendant's property and was walking along Prospect Street on the sidewalk in front of the defendant's property (No. 33 Prospect St.) when the accident happened. In answer to the request that she tell just what happened she said:

"Yes. Well, I got as far as—well, I should say about maybe three to six yards or more from my own place, and in front of the thirty-three, and then fell, and after I was able to get up I looked around to see if there was anything that I fell over. I thought—I didn't see a banana skin, and I didn't see anything. And I caught my foot on the edge of that hole and fell forward very forcibly."* * *

She further testified that when she fell she didn't know what it was that caused her to fall but that she looked around to see what she fell over and found the hole in the sidewalk and knew it was the hole because her foot was there; that the hole was as large "as a horse's hoof, or a little larger"; that the sidewalk appeared otherwise to be a smooth concrete sidewalk; that there were spots in the sidewalk at about the place she fell that were "different cement from the old sidewalk." She said she didn't know what caused the hole to be there, nor how long the hole was there but that it had been there "a couple of years."

Plaintiff rested on substantially the testimony hereinabove recited and a nonsuit was asked and granted on the grounds that the defendant, as owner of the property, was not responsible to the plaintiff for injuries caused by defects in a sidewalk occasioned by ordinary wear and tear, nor for injuries caused by other defects in a sidewalk, unless the plaintiff proves that such other defects were caused by the owner or by some special use he made of the sidewalk.

It is clearly established in this State that an owner is not responsible for injuries due to defects in sidewalks caused by ordinary wear and tear.

This Court said in Volke v. Otway, 115 N.J.L., 553, at page 555, 181 A. 156, at page 158: "The mere happening of an accident, and the fact that a sidewalk has been in a defective and dilapidated condition for several years, to an extent that it constitutes a nuisance, does not in itself render an abutting owner liable to the injured party. The burden is on the plaintiff to show that the owner or his predecessor in title participated in the creation of the nuisance. It is entirely settled...