Schwartz v. Howard Sav. Inst.

• Decision Date: 02 October 1936
• Docket Number: No. 100.,100.
• Citation: 187 A. 171
• Parties: SCHWARTZ et al. v. HOWARD SAVINGS INST.
• Court: New Jersey Supreme Court

187 A. 171

SCHWARTZ et al.

v. HOWARD SAVINGS INST.

No. 100.

Court of Errors and Appeals of New Jersey.

Oct. 2, 1936.

Appeal from Circuit Court, Essex County.

Action by Rose Schwartz and another against the Howard Savings Institution, a corporation. From an adverse judgment, the plaintiffs appeal.

Affirmed.

Cohen & Klein, of Newark, for appellants.

Coult, Satz & Tomlinson, of Newark, for respondent.

WELLS, Judge.

This is an appeal from a judgment entered in the Essex county circuit court, based upon a verdict directed by the court in favor of the defendant, Howard Savings Institution, hereinafter called the Howard Company, and against the plaintiffs, Rose Schwartz and Harry Schwartz, her husband.

On May 23, 1934, the plaintiff, Rose Schwartz, sustained certain injuries as the result of a fall upon a flagstone sidewalk laid in front of and on the premises known as 337 Hawthorne avenue, Newark, which premises were then owned by the Howard Company. The fall was caused by the plaintiff, Rose Schwartz, tripping at a point where one flagstone had sunk so as to be 2 or 2 1/2 inches lower than the rest of the pavement.

The action involved in this appeal was brought to recover damages for the injuries sustained by the plaintiff, Rose Schwartz, and consequential damages sustained by her husband, Harry Schwartz.

The complaint alleged the defendant to be negligent by reason of maintaining a nuisance created by its predecessors in title having negligently constructed and repaired the said sidewalk.

At the trial, testimony was introduced by the plaintiffs to show that the sidewalk in question was originally laid in October, 1922, at the instance of Neils Jensen, the then owner of the property. Underneath the position of the sunken flagstone above mentioned, there had been previously dug a trench for the placing of gas service pipes, which trench had been twice filled in to adjust the natural subsidence of the earth and the washing away by rain. It was shown that the flagstones were laid directly upon the earth, graded for that purpose so as to produce a level sidewalk. Between the house and sidewalk was a steep terrace of about 3 feet in height.

Some four weeks after the sidewalk was laid, and following a rainstorm, this certain flagstone sank several inches. Louis Garelick, tenant and employee of Jensen, raised the stone and leveled it by the insertion of wooden blocks. Following another rain, several weeks later, the stone sank once more, and was this time leveled with small stones and rocks.

One Lena Scher, whose husband was owner of the property at 337 Hawthorne avenue from May 21, 1924, until March 4, 1933, testified that at various times during this period dirt and stones had been placed under the same flagstone to make it level, but that it had later sunk. She also stated that in rainy weather the water would drain from the terrace over and under the flagstone pavement, washing dirt into the street.

The fact of the uneven character of the sidewalk at this place was corroborated by numerous witnesses residing in the neighborhood of the premises in question. Expert testimony as to the construction of this sidewalk was offered by the plaintiff, in the form of hypothetical questions submitted to witnesses, but was excluded upon objection.

No testimony was offered in behalf of the defendant, and upon motion, the directed verdict was granted, from which this appeal is taken.

The plaintiffs allege forty-nine grounds of appeal, and those argued may be grouped into three general allegations of error: (1) The direction of a verdict for the defendant; (2) exclusion of testimony offered to show similar accidents a t the same place; (3) the refusal of the trial court to allow certain hypothetical questions to be answered by way of expert testimony or opinion evidence relating to the manner of construction and repair of the sidewalk.

The duties and liabilities of abutting landowners as to sidewalks have been clearly defined by the courts of this state. An owner is not responsible for defects in the sidewalk caused by the wear and tear of the elements or public use, and not caused by his own wrongful act. McKeown v. King, 99 N.J.Law, 251, 122 A. 753; Braelow v. Klein, 100 N.J.Law, 156, 125 A. 103; Ford v. Jersey Central Power, etc., Co., Ill N.J.Law 112, 166 A. 490; Volke v. Otway, 115 N.J.Law 553, 181 A. 156, 157. An owner is responsible for defects in the sidewalk caused by his affirmative wrongdoing or negligent use of such sidewalk for other than its intended purpose. Davis v. Tallon, 91 N.J.Law, 618, 103 A. 236; Prange V McLaughlin, 115 N.J.Law, 116, 178 A. 782. An owner is also liable for defects in the sidewalk in the nature of a nuisance created by the wrongful or negligent act of a predecessor in title, the nuisance being considered as adopted by the taking of a deed with such defect existent. Braelow v. Klein, supra; Savarese v. Fleckenstein, 111 N.J. Law, 574, 168 A. 850, affirmed 114 N.J. Law, 275, 176 A. 332.

It is upon this last classification of duty and liability that this present action is based. No point is made nor evidence offered to prove...