Smith v. Claude Neon Lights, Inc.

• Decision Date: 31 January 1933
• Docket Number: No. 85.,85.
• Citation: 164 A. 423
• Parties: SMITH et al. v. CLAUDE NEON LIGHTS, Inc.
• Court: New Jersey Supreme Court

164 A. 423

SMITH et al.

v. CLAUDE NEON LIGHTS, Inc.

No. 85.

Court of Errors and Appeals of New Jersey.

Jan. 31, 1933.

Appeal from Circuit Court, Hudson County.

Suit by George Smith, by Ernest Smith, his next friend, and Ernest Smith, individually, against Claude Neon Lights, Inc., and another. Judgments for plaintiffs, and defendant named appeals.

Affirmed.

Collins & Corbin, of Jersey City, for appellant.

William George and Edwards, Smith & Dawson, all of Jersey City, for respondents.

WELLS, J.

This appeal brings up for review judgment in favor of the plaintiffs respondents, recovered in the Hudson circuit court against two defendants, the Trust Company of New Jersey, hereinafter referred to as the trust company, and the Claude Neon Lights, Inc., hereinafter referred to as the light company.

A suit was brought by George Smith, a minor, by Ernest Smith, his next friend, and Ernest Smith, individually, against the trust company and the light company to recover damages for personal injuries alleged to have been suffered because of the negligence of defendants.

Judgments were rendered against both defendants.

The light company alone appeals.

The facts for the most part are undisputed.

The light company by virtue of an agreement with the trust company erected on the roof of the building of the trust company a Neon light sign which consisted of a large steel framework on which appeared a display sign containing the words "The Trust Company of New Jersey." This sign was illuminated at night. At the bottom of this sign (which is spoken of as the main sign), the light company attached a small sign made of metal about 10 feet long and 2 feet wide, weighing about 25 pounds, on which was painted "Erected by Claude Neon Lights Inc." The small sign could not be illuminated.

On June 16, 1926, an agreement was entered into between the two defendants for the erection of a "Claude Neon Electric Roof Sign," and in that agreement no mention was made of the small sign. The specifications describe only the main sign. The small sign was not an electric sign. By this agreement the light company guaranteed the trust company against mechanical and electrical defects in the sign (that is, the main sign) for the period of one year from the date of completion.

On December 21, 1926, there was executed what was described in the case as a "Maintenance Contract," wherein the light company agreed to maintain "the Claude Neon Tube Sign" for a period of 24 months, beginning one year from the date of erection of said sign, for the sum of $173 per month, payable each month in advance. The small sign was not a tube sign, and the maintenance contract therefore had to do only with the main sign.

Under this maintenance contraot the light company agreed to paint the sign twice during the period of maintenance, and by the second paragraph agreed "to install new parts of equipment (transformers, tubing and wiring) where any or all fail to give service so that sign becomes inoperative in ordinary course of operation in part or whole, when and only when such parts of equipment are not wholly or partially destroyed due to strikes, or acts of God, Labor Unions, fires, floods, earthquakes, war or other conditions or contingencies beyond the control of Purchaser or Company" (referring to trust company). The third paragraph required the light company to carry such necessary parts as might be required to minimize delay in the trust company not having full benefit of the sign.

The trust company on its part agreed under paragraph A "to carry insurance or be personally liable for repairs on sign made necessary by causes for which the Company (referring to Light Company) is not liable under Section No. 2," quoted above, and also to notify the light company promptly by quickest manner when the sign became inoperative or damaged in any manner, and to carry full insurance on the sign, and, in the event of destruction in whole or part by fire, to reimburse the light company for full cost of work done under the maintenance contract to the date of such damage. A reading of this contract shows it had reference only to the main sign.

The testimony showed that the sign was erected and in operation the latter part of December, 1926, or the earty part of January, 1927.

On January 6, 1929, during the term of the maintenance contract, the small sign became dislodged and fell to the street, striking the infant plaintiff, who was riding a bicycle on Bergen avenue, Jersey City, and resulting in the injuries for which this suit was brought. The allegation of negligence in the complaint charges either or both of the defendants with the duty of reasonable care in the erection or securing of the small sign in a manner to prevent the same from becoming loose and falling from the framework, and with the further duty of reasonable care in making inspection of said sign, and charges the defendants with a failure of these duties.

Appellant argued three grounds of appenl. First, the trial court should have granted a nonsuit or directed a verdict in its favor. Second, there were errors in the charge. Third, the trial court erroneously refused to charge as requested.

The question presented under the first ground of appeal is whether there is any evidence to sustain a finding of negligence against the light company. We think there was.

In the first place, it is undisputed that the light company erected the small sign. There is nothing in either the original contract or the maintenance contract indicating that there was any obligation on the part of the light...