Van Zandt v. BERGEN COUNTY, NJ

• Decision Date: 24 September 1935
• Docket Number: No. 5690.,5690.
• Citation: 79 F.2d 506
• Parties: VAN ZANDT et al. v. BERGEN COUNTY, N. J.
• Court: U.S. Court of Appeals — Third Circuit

79 F.2d 506 (1935)

VAN ZANDT et al. v. BERGEN COUNTY, N. J.

No. 5690.

Circuit Court of Appeals, Third Circuit.

September 24, 1935.

Harry Lane and Robert Carey, both of Jersey City, N. J., for appellants.

Walter G. Winne, of Hackensack, N. J., for appellee.

Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.

DAVIS, Circuit Judge.

The question in this case is whether or not the District Court erred in directing a jury to return a verdict in favor of the defendant, the county of Bergen, N. J., and against the plaintiffs, Margaret and Le Roy Van Zandt.

In their complaint, the plaintiffs alleged that they drove their automobile into excavations which the defendant had caused to be dug in the public highway and left unguarded, and that as a result of the shock of striking one of the holes the automobile went out of control and was wrecked, causing serious injuries to the plaintiffs.

There was evidence before the court that tended to support these allegations.

After 7 o'clock on Sunday evening, March 10, 1929, the plaintiff Le Roy Van Zandt was driving his automobile on a road maintained by and belonging to Bergen county. His wife, the other plaintiff, was a passenger in the automobile. The road was hard-surfaced and generally in good condition. But without warning, the plaintiff came on two of the holes in the highway and, in swerving to avoid striking them, he hit another large and deep hole and lost control of the automobile, which resulted in its leaving the highway and striking a clump of trees.

There was substantial evidence tending to show that a gang of men was repairing the highway at the place of the accident on March 9, 1929, the day prior to the accident, and that they were digging out spots in the broken surface in preparing to fill them with a repair substance. This repair work was finished on Monday and Tuesday, March 11 and 12, when large quantities of stone and paving material were used to fill up the holes in the roadway. The evidence tends to show that the plaintiff's automobile struck a hole three feet in diameter and approximately eight inches deep, which defendant had made wider, deeper, and more dangerous than it was before the work of repair was begun, and that there were no signals, guards, or other protection to warn users of the highway of the condition in which the road had been left over the week end.

The defendant does not question that the evidence was sufficient to submit to the jury in an ordinary case, but it contends that an action based on negligence in repairing or maintaining its highways cannot be sustained against a county of the state of New Jersey.

That, in itself, is a correct legal conclusion. The rule of law is well settled that a public corporation is not liable for negligence in performing or failing to perform a public duty. Freeholders of Sussex County v. Strader, 18 N. J. Law, 108, 35 Am. Dec. 530; Jersey City v. Kiernan, 50 N. J. Law, 246, 13 A. 170; Hart v. Freeholders of Union County, 57 N. J. Law, 90, 29 A. 490; Buckalew v. Freeholders of Middlesex County, 91 N. J. Law, 517, 104 A. 308, 2 A. L. R....