Schwartau v. Miesmer
| Decision Date | 03 June 1958 |
| Docket Number | No. A--151,A--151 |
| Citation | 50 N.J.Super. 399,142 A.2d 675 |
| Parties | Hans SCHWARTAU, Plaintiff-Respondent, v. Charles MIESMER and Evelyn Miesmer, jointly and severally, Defendants, and Borough of Closter, a municipal corporation in the County of Bergen, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
George Winne, Hackensack, for defendant-appellant.
William V. Breslin, Englewood, for plaintiff-respondent (Hammer & Hammer, Passaic, attorneys).
Before Judges PRICE, HANEMAN and SCHETTINO.
The opinion of the court was delivered by
PRICE, S.J.A.D.
Appellant seeks the reversal of a judgment entered on the verdict of a jury in favor of plaintiff-respondent against the Borough of Closter in the sum of $25,000. The jury returned a verdict of no cause for action in favor of defendants Miesmer. They are not parties to this appeal. The trial court denied appellant's motion for a new trial which motion was based on appellant's contention that the verdict was against the weight of the evidence.
The verdict returned in favor of plaintiff against defendant Borough of Closter was the result of personal injuries sustained by plaintiff when he fell into a catch basin of a storm sewer on July 10, 1956 between 9 p.m. and 10 p.m. The catch basin was located near the southwest corner of the intersection of Columbus and Eckerson Avenues in the Borough of Closter.
The pretrial order contained the following stipulation:
'The parties agree to stipulate the following facts:
Plaintiff's home was located at the northeasterly corner of the aforesaid intersection diagonally across from the Miesmer residence. On the evening in question plaintiff had been a social guest at the home of defendants Miesmer.
The Quantum of the jury's verdict is not challenged on appeal. The basic questions involved are: (a) whether the trial court erred in denying the motion of the defendant borough for judgment in its favor and in so doing failed to apply the statutory and decisional law of the State pertaining to tort liability of a municipality engaged in a non-proprietary undertaking; (b) whether certain rulings by the court during the trial were erroneous; (c) whether there was an abuse of discretion by the trial court in denying a motion for a new trial based upon the ground that the verdict was contrary to the weight of the evidence.
The catch basin in question had been damaged in 1951 by a contractor Paillex employed by defendants Miesmer. The damage occurred while the contractor was operating a bulldozer at the time of the construction of the Miesmer home on the site in question. The contractor testified that he covered the damaged portion of the catch basin with two 3 6 boards. Miesmer and his wife testified that they reported the damage to the police department and Miesmer testified that he placed planks over the hole.
A police blotter entry, signed by the police captain, John Barnett, was received in evidence at the trial. It stated:
'May 9, 1951 400 PM 1200 Mid 410 PM Investigated Mr. Miesmer report of a Bull Dozer doing some damage, found the cover of the catch basin broken and missing, W. Haring notified, see Chief Cole report.'
Haring at that time was an employee of the Department of Public Works in the defendant borough and has since become its superintendent. At the trial, he denied that he was ever notified of such damage or that he knew of any repairs that were made to this particular catch basin until after July 10, 1956, the date of plaintiff's accident. The police captain of the borough testified at the trial confirming the record of the report to Haring.
Mrs. Miesmer testified that within a period of several months following the initial complaints to the police department by her and her husband in 1951 with reference to the damaged condition of the catch basin, she saw a borough truck parked at the location of the catch basin and saw several men working there, whom she recognized as borough employees. Both Mr. and Mrs. Miesmer stated that thereafter they observed a new wooden cover fitted over the catch basin opening, which cover was not the planking which had previously been used. Testimony of an expert witness on behalf of plaintiff established that use of a wooden cover reflected improper repair work because wood is not strong enough and is subject to the action of the elements. He testified that the cover should have been of cast iron. His testimony is unchallenged.
We conclude that the fitted wooden cover with the passage of time, became overspread with dirt, grass grew thereon and the wood rotted; that the latent condition of danger progressed until the night of the accident, resulting in the injuries to plaintiff.
It was established that the municipality repaired the catch basin after the accident. Such testimony was properly received with the limitation that it was admitted solely with reference to the question of control by the municipality.
Appellant challenges the action of the trial court in denying motion for the entry of judgment in favor of the borough at the conclusion of the entire case, which motion had been preceded by the court's denial of a motion for involuntary dismissal at the end of plaintiff's case. On such motion plaintiff was entitled to the benefit of all evidence in his favor as well as all inferences favorable to him which could reasonably be adduced therefrom. Melone v. Jersey Central Power & Light Co., 18 N.J. 163, 113 A.2d 13 (1955); Morie v. N.J. Manufacturers Indem. Ins. Co., 48 N.J.Super. 70, 76, 137 A.2d 41 (App.Div.1957).
The aforesaid recital of the evidence demonstrates that a Prima facie case of tort liability against a municipality in a non-proprietary activity was presented. The basic question is whether it could reasonably be concluded from the evidence that there was active wrongdoing on the part of the Borough of Closter. The trial court was fully justified in concluding that the case should be submitted to the jury. Melone v. Jersey Central Power & Light Co., supra.
Appellant asserts that the trial court erred in refusing to charge certain requests submitted by defendant borough. The first of these alleged errors related to the refusal of the court to charge the following request:
This statute has no applicability to the catch basin in question. In the case of Hammond v. County of Monmouth, 117 N.J.L. 11, 14, 186 A. 452 (Sup.Ct.1936), the court held that culverts did not come within the purview or scope of the act in question. In the case of Selph v. Morristown, 16 N.J.Misc. 19, 195 A. 862 (Sup.Ct.1938), not officially reported, it was held that the thoroughfare where the accident in that case had occurred would not necessarily be included within the classification of 'public grounds, buildings or structures' referred to by the statute in question. We hold that the site of the accident and the storm sewer here involved are not within the terms of this statute.
Appellant places reliance on the case of Thompson v. Board of Education, Millville, 20 N.J.Super. 419, 90 A.2d 63 (App.Div.1952), where the provisions of N.J.S.A. 18:5--30 applicable to school districts were under consideration. The inapplicability of the cited case is found in the fact that there the injured plaintiff sustained her injury on a highly polished high school floor. This structure was clearly within the provisions of the statute.
Appellant next assigns as error the failure of the court to charge another request submitted by defendant, which was as follows:
'The only facts upon which you can find the Borough liable to Mr. Schwartau is if you determine that Walter Haring, as Supervisor of Roads, or any of the men under his supervision, made the fitted wooden cover in 1951 or 1952 when they were at the scene in a truck of the Borough's.'
We find no error in the refusal to charge this particular request because the trial judge did charge the following request submitted by the defendant covering the same subject matter:
'In order for you to find a verdict against the Borough of Closter, you must find from the evidence that the employees of the Borough, under the direction of the Superintendent of Roads, committed an unlawful act or a lawful act in an unlawful manner, which caused the injuries to Mr. Schwartau.'
The court also in other portions of its charge adequately covered the subject matter so that the issue with reference to the activity on the part of the borough or its representatives was fairly and...
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