Reilly v. Mayor & Common Council of City of New Brunswick

• Decision Date: 03 March 1919
• Citation: 108 A. 107
• Parties: REILLY v. MAYOR AND COMMON COUNCIL OF CITY OF NEW BRUNSWICK.
• Court: New Jersey Supreme Court

108 A. 107

REILLY

v. MAYOR AND COMMON COUNCIL OF CITY OF NEW BRUNSWICK.

Court of Errors and Appeals of New Jersey.

March 3, 1919.

Appeal from Supreme Court.

Action by Elizabeth Reilly, administratrix, against the Mayor and Common Council of the City of New Brunswick. Judgment for defendants, and plaintiff appeals. Affirmed.

Edmund A. Hayes and John P. Kirkpatrick, both of New Brunswick, for appellant.

GUMMERE, C. J. The plaintiff sued to recover damages for the partial destruction of her intestate's residence (during his lifetime) by a fire, her claim being that under the facts proved by her the responsibility of the defendant to answer for such damages is shown. At the trial of the case the presiding judge, after the testimony was all in, considered that no liability had been shown on the part of the municipality to answer for the loss sustained by the plaintiff's decedent, and directed a verdict against her. We are now asked to reverse the judgment entered upon that verdict.

Viewed in the light most favorable to the plaintiff, the situation disclosed by the evidence was as follows: The city of New Brunswick was in possession of a tract of land adjacent to the Reilly home, which was used by it as a dumping ground for garbage, and had been so used for many years. On January 12, 1914, among other refuse a great number of dry Christmas trees were hauled in the city dump wagons to this ground, and there unloaded, and set fire to by certain city employes. At this time a high wind was blowing, and the sparks blew across the dumping ground and upon the Reilly home, setting fire to it, and partially destroying it.

The common-law rule, with relation to the liability of the occupant of property for a fire communicated from his premises to that of his neighbor, is that he is not to be held responsible therefor, unless he negligently kindles, or negligently guards, the fire upon his own premises. And this rule prevails in our own state. Read v. Pennsylvania R. Co., 44 N. J. Law, 280, 282. This being so, the liability of the municipality must be predicated upon the negligence of its employes either in the kindling or the guarding of the fire in question, and the legal obligation of the municipality to answer for such negligence. The propriety of the judicial action complained of, therefore, must depend upon whether the doctrine of respondeat superior applies in a case like that now before us; for, if it does apply, then certainly the proof in the case entitled the plaintiff to go to the jury on the question of the existence, or nonexistence, of negligence on the part of the city's employes, and whether it was...