Olesiewicz v. City of Camden

• Decision Date: 20 October 1924
• Docket Number: No. 71.,71.
• Citation: 126 A. 317
• Parties: OLESIEWICZ et al. v. CITY OF CAMDEN.
• Court: New Jersey Supreme Court

126 A. 317

OLESIEWICZ et al.

v. CITY OF CAMDEN.

No. 71.

Court of Errors and Appeals of New Jersey.

Oct. 20, 1924.

Appeal from Supreme Court.

Action by Walter S. Olesiewicz, by next friend and others, against the City of Camden. Judgment for plaintiffs, and defendant appeals. Affirmed.

Howard L. Miller, of Camden, for appellant.

Albert S. Woodruff, of Camden, for respondents.

KALISCH, J. The appellant seeks to reverse a judgment entered against it on the verdict of a jury, in the court below, in an action brought against it to recover damages for injuries sustained by the minor plaintiff (and also by his father, who joined in the action), through the negligence of its servants, under these circumstances: The city of Camden owned and conducted an asphalt plant. In connection with the business it owned and operated a steam roller. It not only did its own street asphalt work but also performed general work for private persons and corporations. On the 13th day of April, 1922, the city was doing asphalt work on Haddon avenue, partly on its own account and partly for the Public Service Company. During the noon hour the steam roller was left in the highway generating steam, without any person being in attendance. The safety valve was set so that steam would blow off at a pressure of 125 pounds to the square inch. There was no warning sign set up. While the plaintiff, a lad of 15 years of age, was driving a team of horses along the avenue, and the horses were about passing the steam roller, it suddenly with a hissing sound emitted a cloud of steam, enveloping partly the heads of the horses, thereby frightening them and causing them to run away, and as a result the lad was seriously and permanently injured.

The record shows that on behalf of the municipality it was conceded that the work was being done for the Public Service Company. It is true that this concession was made with the qualification that the work was done at cost. Later on, in the progress of the case, counsel of defendant said, "I may have to withdraw that agreement touching the work for individual corporations," etc. This was not done, evidently because of the fact that there was plenary proof that the city was not only doing work for the Public Service Company but for private individuals as well. Allusion is made to the foregoing circumstance in order to demonstrate that the appellant was engaged at the time of the injury to the plaintiff in a private enterprise which was practically conceded, and, that being so, there was no factual question to be presented to the jury for its determination in regard thereto.

The first and second grounds of appeal urged for a reversal are based upon a refusal of the trial judge to direct a verdict for the defendant. In support of this request it is argued, firstly, that there was a complete failure of any proof of any profit derived by the city from the work done, and, even though it appeared that the work was done for profit, there can be, properly, no recovery, because such work was the exercise of a governmental function.

The common-law rule that a municipality in the exercise of a public duty can commit no wrong for which a person injured thereby can recover compensation has its limitations and exceptions. This was impliedly recognized in Freeholders of Sussex v. Strader, 18 N. J. Law, 108, 35 Am. Dec. 530. At page 116 Judge Dayton, speaking for the Supreme Court, points out that for a breach or neglect of a public duty, though every individual composing that public is injured, he can have no private remedy at the common law and that the only remedy is by indictment.

This court in Livermore v. Freeholders of Camden, 31 N. J. Law, 508, affirmed the doctrine laid down in the case cited, and hence the doctrine as there enunciated and applied may be considered as firmly settled.

In Jersey City v. Kiernan, 50 N. J. Law, 246. at page 250, 13 Atl. 170, 172, that distinguished jurist, Beasley, C. J., speaking for the Supreme Court, points out with convincing logic to what extent the common-law rule is to be applied. He says:

"What is the legal rule when a private nuisance alone has arisen exclusively from such a source? In the principal case referred to, the neglect complained of—that is, the absence of proper care in the construction or reparation of the bridge—was a public evil affecting the body of the people; in this case the defect in the sewer is injurious, apparently, to the plaintiff and one other contiguous...