Wirth v. Peters

• Decision Date: 20 June 1955
• Docket Number: No. A--246,A--246
• Citation: 36 N.J.Super. 172,114 A.2d 870
• Parties: Elizabeth P. WIRTH and Gustave Wirth, her husband, Plaintiffs-Appellants, v. Clarence PETERS, Defendant-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 172

36 N.J.Super. 172

114 A.2d 870

Elizabeth P. WIRTH and Gustave Wirth, her husband Plaintiffs-Appellants, v. Clarence PETERS, Defendant-Respondent.

No. A--246.

Superior Court of New Jersey Appellate Division.

Argued May 31, 1955.

Decided June 20, 1955.

Joseph T. Sherman, Camden, for plaintiffs-appellants.

Samuel P. Orlando, Camden, for defendant-respondent (Orlando, Devine, & Tomlin, Camden, attorneys).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

FREUND, J.A.D.

The plaintiffs appeal from a judgment of involuntary dismissal of their complaint charging the defendant with negligence in creating and maintaining a nuisance, consisting of a hole in the sidewalk in front of premises owned by the defendant on Carman Street, in the City of Camden.

Carman Street is a narrow street, only 12 feet wide and used by two-way traffic. The defendant owns and resides in premises known as No. 2512 Carman Street, which runs through to Mickle Street. In the rear he maintains a plumbing shop and a garage for his truck. He also owns property designated as Nos. 2513-15 Mickle Street, consisting of a lot and a two-story building which he rents for storage purposes to one Murphy, who is engaged in the refrigerator business on Carman Street opposite the defendant's premises.

On the night of March 7, 1953 the plaintiff, Elizabeth P. Wirth, while walking along the sidewalk on Carman Street in front of the defendant's property, tripped and fell by reason of broken concrete which had caused a depression in the sidewalk near the curb in front of the defendant's property. Photographs received in evidence show that a substantial part of the curb is broken and that additionally the broken portion of the sidewalk extends about three feet in from the curb.

The plaintiff established from the testimony of several witnesses, including the defendant himself, that the break in the curb and pavement, originally caused by a tractor, was worsened by trucks driving over and upon the sidewalk at the place where the plaintiff fell, and that for a number of years both large and small trucks had parked on the sidewalk in front of the defendant's premises--in fact, at the exact spot where the plaintiff fell. On occasion, the defendant's own truck was seen upon the sidewalk loading and unloading merchandise. At times other trucks parked there and made deliveries to the defendant's premises. Several times trucks owned by Murphy, the defendant's tenant, were seen parked on the walk. One witness testified that two or three times she had observed trucks doing more damage to the sidewalk where it had already been broken.

The defendant, called by the plaintiff, testified that about 14 or 15 years prior to the accident a contractor who was doing some work on adjoining property 'come up out of the cellar with a big caterpillar tractor and tore a lot of my curb up, and then the trucks and everything going over it has broke some cement right in front of my gate, and, of course, * * * cars going over it, possibly, splash some of the dirt out * * * There's a little depression in front of my gate that goes back to my office, but I have a driveway alongside of that which we use all the time * * * Cars and trucks running over this hole would possibly make it a little bit deeper, but, as far as I could say, that's accurate (referring to the photographs) as far as I would know. It has been that way about 12 or 14 years.' Further, he testified that trucks 'back in my driveway, and run in my driveway,' and in response to a question as to whether he had ever seen trucks go over his sidewalk, he answered, 'Yes, when they can't get through the street. The street's only twelve foot wide. When they can't get through, they get up on our pavement and go on through.'

A sidewalk is intended primarily for the use of pedestrians; it was never intended or designed to be used as a parking place or driving area for trucks or automobiles. Lippincott v. Lasher, 44 N.J.Eq. 120, 14 A. 103 (Ch.1888); Sexton v. Public Service Coordinated Transport, 5 N.J.Super. 555, 68 A.2d 648 (Ch.Div.1949). Any act or obstruction upon a sidewalk that unnecessarily incommodes or impedes the lawful use thereof by the public is a nuisance. Durant v. Palmer, 29 N.J.L. 544 (E. & A.1862).

It is settled law that

'An abutting owner is not liable for injuries suffered by a pedestrian on a defective or dilapidated sidewalk even though it constitutes a nuisance, unless the proofs show that that owner or his predecessor in title participated in the creation or continuance of the nuisance. * * * The owner of premises abutting a public sidewalk is not responsible for defects therein caused by the action of the elements, or by wear and tear incident to public use, and not caused by his own wrongful act. * * *' Moskowitz v. Herman, 16 N.J. 223, 108 A.2d 426, 427 (1954).

See also Volke v. Otway, 115 N.J.L. 553, 181 A. 156 (E. & A. 1935); Coll v. Bernstein, 14 N.J.Super. 71, 81 A.2d 389 (App.Div.1951); Mount v. Recka and City of Jersey City, 35 N.J.Super. 374, 114 A.2d 289 (App.Div.1955); 2 Stevenson, Law of Negligence in the Atlantic States, § 600 and § 602, p. 891 et seq.

The abutting owner may be held liable upon a showing that he permitted the sidewalk to be used for an improper purpose by a lessee or others, causing the defect in the sidewalk, which defective condition was the proximate cause of the plaintiff's injuries. Davis v. Tallon, 91 N.J.L. 618, 103 A. 236 (E. & A.1918); Giuliana v. Ginnelly, 6 N.J.Super. 76, 69 A.2d 888 (App.Div. 1949).

Here, according to the defendant's own testimony, the broken curb and sidewalk were not...