On appeal from the Supreme Court.
For the appellants, Coult, Satz & Tomlinson.
For the defendant Stanley-Fabian Corporation, William P. Braun.
For the defendant Park Union Lumber Company, King & Vogt.
The opinion of the court was delivered by
WALKER, CHANCELLOR. This was an action in the Supreme Court, Morris county, for damages for an accident to the plaintiff Dolores Nerney, in which her husband joined, claiming damages by reason of expending money for medical treatment for her and being deprived of her services and society. The case was tried before Circuit Court Judge Lawrence and a jury. The jury rendered a verdict in favor of the defendants of no cause of action, upon which judgment was entered, and the plaintiffs appeal to this court. The sole ground of appeal is an alleged error in the refusal by the judge to charge a preferred request by the plaintiffs, as follows:
"The rule is settled that the traveling public have a right to presume that there is no dangerous impediment in any part of the highway, in the absence of notice of the presence of such impediment. This principle applies to all interferences with safety of travel arising from temporary uses of the highway that are not normal and permanent incidents thereof, and it relieves persons passing along the highway from any obligation to look for such interferences with travel."
It was Mrs. Nerney's contention that she had stepped into an open coal hole, which coal hole was maintained by the defendant Stanley-Fabian Company, in a sidewalk which fronted on the premises of that defendant, and that this coal hole had been opened and left unguarded by the servant of the
defendant, Park Union Lumber Company, who had been delivering or was about to deliver a load of coal to the theatre building of the other defendant.
The defendants contended that Mrs. Nerney had been injured in tripping over the coal chute as she attempted to step over it. The question of fact as to the negligence of one or both of the defendants was left to the jury. Both had pleaded contributory negligence and this question was also left to the jury to determine.
Mrs. Nerney herself testified that she did not see the coal hole; did not look for it; was looking for a space to walk; was not interested in the coal wagon or the chute or whatever it may have been; did not anticipate a hole there, did not see any hole, saw what appeared to be a perfectly clear passage to go up the street, did not see the end of the chute before she fell, simply looked ahead to see if there was a space for her to walk and then she walked on it on the sidewalk.
There had been a previous trial of this case (Nerney v. Stanley-Fabian Corp., 7 N.J.Mis. R. 361), in which the plaintiffs had a verdict and the defendants obtained a rule to show cause, which was made absolute in the Supreme Court, because against the weight of evidence as ...