Soriero v. Pa. R. Co.

• Decision Date: 01 December 1914
• Docket Number: Nos. 81, 82.,s. 81, 82.
• Citation: 92 A. 604,86 N.J.L. 642
• Parties: SORIERO v. PENNSYLVANIA R. CO. (two cases).
• Court: New Jersey Supreme Court

92 A. 604

86 N.J.L. 642

SORIERO

v. PENNSYLVANIA R. CO. (two cases).

Nos. 81, 82.

Court of Errors and Appeals of New Jersey.

Dec. 1, 1914.

(Syllabus by the Court.)

Appeal from Supreme Court.

Actions by Dominick Soriero, by next friend, and by Rafiele Soriero, against the Pennsylvania Railroad Company. From judgment for plaintiffs, defendant appeals. Reversed, and venire de novo ordered.

Charles M. Egan, of Jersey City, for appellant.

Vredenburgh, Wall & Carey, of Jersey City, for appellees.

MINTURN, J. An infant son and his father are plaintiffs, respectively, in two suits against the defendant, seeking damages for injury to the infant. While playing upon some railroad ties, placed against defendant's wall abutting Railroad avenue in Jersey City, Dominick Soriero, the infant plaintiff, eight or nine years old, was injured by the falling of a stone from the wall. There was testimony that the stones in the wall had been loose, and were loose at the time of the accident; but no actual notice or knowledge of that fact was brought home to the defendant, and upon the existence of that fact defendant based its motion to nonsuit, as well as its motion for a direction of a verdict at the close of the case. The trial resulted in a verdict for both plaintiffs.

The motions to nonsuit and to direct a verdict present the defense interposed by defendant, as a question of law, upon substantially undisputed facts, as to the manner and conditions in which the accident occurred. We think it indisputable that the ties upon which the infant plaintiff was playing were upon the public street, and that the infant was not a trespasser upon the defendant's premises or property at the time of the accident, as was the case in Friedman v. Snare & Triest Co., 71 N. J. Law, 605, 61 Atl. 401, 70 L. R. A. 147, 108 Am. St. Rep. 764, 2 Ann. Cas. 497. The falling of the stone was not caused by the fact that the ties were stored upon the street, or that the infant was playing upon them when the stone fell. Those were mere conditions incident to the situation, and were in no wise connected as primal or causal factors of the damage.

The gravamen of the allegation imposing liability is that the plaintiff was lawfully upon the public highway, when a stone, due to defendant's carelessness in maintenance, fell, causing the damage complained of. That situation brings the case within the familiar principle which attributes negligence to an abutting owner of property who so negligently manages the same that a passerby lawfully upon the highway is injured. Addison states the principle thus:

"Every occupier of a house adjoining a highway is responsible for injuries to passers-by, arising from things falling from the house into the streets, unless he can show that the fall arose from storm or tempest, or some inevitable accident." 1 Addison on Torts, 253, and cases cited.

In 29 Cyc. it is stated that:

"The doctrine under consideration has been applied in cases of materials or articles falling from buildings or other structures onto passers-by on a public street; and the unexplained falling of a building or other structure creates a presumption of negligence."

So Chief Baron Pollock, applying the principle to the case of a passer-by injured on the highway by the falling of a barrel of flour from the upper window of an abutting warehouse, said:

"I think that such a case would beyond all doubt afford prima facie evidence of negligence. A barrel would not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous. So in the building or repairing of a house, or putting pots on the chimney, if a person passing along the road is injured by something falling upon him, I think the accident alone would be prima facie evidence of negligence." Byrne v. Boadle, 2 Hurl. & C. 722.

A case substantially similar in principle to that at bar was Kearney v. London, etc., R. R., L. R. 5 Q. B. 411, where a railroad bridge had been built three years, and while the plaintiff was passing under it on a public highway a brick fell and injured him. A motion to direct a nonsuit was made, upon the ground that the mere falling of the brick indicated no negligence with which the defendant could legally be charged. The court of Queen's Bench held that the case was one for the application of the doctrine of res ipsa loquitur, or in other words the falling of the brick was prima facie evidence of negligence. Upon appeal to...