State v. Swayze

• Decision Date: 08 November 1889
• Citation: 52 N.J.L. 129,18 A. 697
• Parties: STATE (REDSTRAKE, Prosecutor) v. SWAYZE.
• Court: New Jersey Supreme Court

18 A. 697

52 N.J.L. 129

STATE (REDSTRAKE, Prosecutor)

v. SWAYZE.

Supreme Court of New Jersey.

Nov. 8, 1889.

(Syllabus by the Court.)

Certiorari to court of common pleas, Salem county; WOOD, PLUMMER, and HITCHNER, Judges.

This action was originally brought in the court for the trial of small causes. The justice who heard the case rendered a judgment for the plaintiff in the sum of $50.50. Upon an appeal to the court of common pleas this judgment was set aside, and a judgment entered for plaintiff in the reduced sum of $40, with costs below, but without costs in the pleas.

The record now comes up from the court of common pleas, to be reviewed in this court upon the following agreed stale of facts:

In April, 1888, James J. Redstrake, the above plaintiff in certiorari, was the owner of a house and lot on Griffith street, in the city of Salem, N. J. There were certain shade trees at that time standing in the sidewalk, near the curb, in front of said house. These trees were unsafe, because of their decayed condition, and required trimming. A wire belonging to a telephone company ran along in front of said property, under the limbs of said trees, and crossed the said street diagonally. The said wire was so placed that the said trees could not be trimmed without some of the limbs falling on it. The said Redstrake employed two men to trim part of said trees; and, while they were doing so, a limb cut from one of the trees fell upon the said wire, and bent it down. Redstrake's attention was called to the fact that the wire in that position was dangerous to wagons passing along the street; and he then went to a neighbor's, to borrow a rope to tie it up with. The wire was then lifted up, and tied so as to not interfere with travel along the street. Afterwards another man trimmed the rest of the trees, for the wood, by agreement with Redstrake, and, in so doing, cut a limb from one of the trees, which fell upon the wire, and bent it down again. Before the limb was removed the wife of the defendant in certiorari came along the said street, with a horse and buggy. The wire caught the top of the buggy, and broke it, and caused the damage for which the action before the said justice was brought. Redstrake was present part of the time while the last-mentioned man was trimming the trees.

Argued at June term, 1889, before REED, MAGIE, and GARRISON, JJ.

C. H. Sinnickson, for prosecutor. M. H. Stratton, for defendant.

GARRISON, J., (after stating the facts as above.) If the relation of master and servant existed between the defendant below and the man whom he employed to trim trees for him, the former cannot escape liability for the negligence of the latter. The state of facts agreed upon by counsel discloses a clear case...