Volke v. Otway

• Decision Date: 09 October 1935
• Docket Number: No. 10.,10.
• Citation: 181 A. 156
• Parties: VOLKE et al. v. OTWAY et al.
• Court: New Jersey Supreme Court

181 A. 156

VOLKE et al.

v. OTWAY et al.

No. 10.

Court of Errors and Appeals of New Jersey.

Oct. 9, 1935.

Syllabus by the Court.

The mere happening of an accident, and the fact that a sidewalk has been in a defective and dilapidated condition for several years, to an extent that it constitutes a nuisance, does not in itself render an abutting owner liable to the injured party. The burden is on the plaintiff to show that the owner or his predecessor in title participated in the creation of the nuisance. It is entirely settled in this state that the owner owes no duty to maintain the sidewalk in front of his premises, and is not responsible for any defects therein which are not caused by his own wrongful act.

The CHIEF JUSTICE, and DONGES and PERSKIE, Justices, dissenting.

Appeal from Circuit Court, Hudson County.

Action by Marinda Volke and another against Emma H. Otway, executrix of the estate of Horatio H. Otway, deceased, and another. From a judgment of nonsuit, plaintiffs appeal.

Affirmed.

Wallace P. Berkowitz, of Jersey City (Alfred Brenner, of Bayonne, of counsel), for appellants.

Nicholas J. Cafarelli, of Union City (John Milton, of Jersey City, of counsel), for respondents.

HETFIELD, Judge.

The appellants, husband and wife, instituted suit in the Hudson county circuit court, to recover damages from the owner and tenant of premises situated at No. 915 Bergenline avenue, Union City, by reason of personal injuries sustained by the wife, who, it is alleged, on the 24th day of December, 1927, caught her foot in a depression in the sidewalk adjacent to said premises, causing her to trip and fall.

The trial resulted in a nonsuit as to both defendants, which is alleged as error, and the sole ground of appeal.

The original complaint charged that the defendants were negligent, in that they permitted the iron doors covering the stairway leading to the cellar of said building to fall back upon the concrete sidewalk whenever they were opened, which caused the sidewalk to become broken and damaged to such an extent as to cause a dangerous and defective condition. This charge of negligence was subsequently abandoned by the plaintiffs, and the complaint was amended so as to allege that the dangerous and defective condition of said sidewalk constituted a nuisance, and was caused by reason of subjecting same to extraordinary use, by permitting motor-driven and horse-drawn trucks to drive upon the sidewalk, and that heavy boxes, barrels, and articles of merchandise were thrown thereon from said trucks.

The proofs presented at the conclusion of the plaintiffs' case show that the hole or depression which caused the plaintiff to trip was located about a foot from the cellar door, between said door and the curb, and that this particular defect in the sidewalk was observed by one of the witnesses in 1918, but there is nothing to indicate how long it had existed prior to that time. There was also testimony to indicate that on several occasions subsequent to 1921, trucks, while unloading merchandise in front of the property involved, would have two wheels on the curb, in order to allow trolleys to pass; that heavy barrels and boxes were removed from the trucks, either by using a pair of skids, or dropping same upon the sidewalk, and then taken to the cellar of the building; and that the sidewalk had been in poor condition and the curb broken for several years prior to the accident in question. There was no testimony, however, to show in what manner merchandise, if any, was delivered during the year 1918 or prior thereto, nor any proof as to what created the depression, which, it is alleged, caused the plaintiff to trip and fall.

The theory upon which liability was claimed was the maintenance of a nuisance on the public highway, the creation of which was participated in by the defendants, in subjecting the sidewalk to a use...