On appeal from the Supreme Court.
For the appellant, Arthur T. Vanderbilt.
For the respondents, Joseph C. Cassini.
The opinion of the court was delivered by
LLOYD, J. The action in this case was to recover damages for injuries received by a small boy through falling down an opening under a bridge railing in the city of East Orange. Originally brought against that city and the board of freeholders of Essex county, the city was dropped out and the case proceeded to a finality against the freeholders alone, and resulted in verdicts against that body in favor of the injured boy and his father.
The defendant appeals and contends that there was error in the rulings of the court on a motion of the defendant to dismiss the complaint and in the refusal of the defendant's motions for a nonsuit and for a direction of a verdict in its favor.
The action appears to have been instituted and liability predicated on the Bridge act of 1918, chapter 185, page 609, section 1309 of which provides that --
"In all cases where the board of chosen freeholders of a county, or boards of chosen freeholders of two or more counties, are chargeable by law with the construction, erection,
rebuilding or repair of any viaduct or bridge, and the said board or boards shall wrongfully neglect to perform their duty in that behalf, by reason whereof any person or persons shall receive injury or damage in his, her or their persons or property, such person or persons may bring an action at law against said county or counties and recover judgment to the extent of all such damage sustained as aforesaid."
It was contended on the motions for nonsuit and direction, and is contended here, first, that there was no proof that the board of freeholders was in anywise chargeable by law with the "construction, erection, rebuilding or repair" of the bridge; and second, that no proof was produced that the accident was due to any defects in such construction, erection, rebuilding or repair. The plaintiffs, under the pleadings, were put upon their proofs on these controverted issues.
As to the first, no evidence was presented, the only proof being that this was a bridge continuing a street across a small stream in the city of East Orange. Respondent urges, however, that section 1301 of the Bridge act (supra) establishes the freeholders' responsibility for the repair of the bridge. We do not so read it. While this section confers power on the boards of freeholders to build or acquire and maintain bridges in their respective counties, it imposes no obligation to exercise this power.
For the bridge the board of freeholders might or might not be responsible. There have been and no doubt still are, many bridges in the state other than those as to which the boards of freeholders have assumed or are chargeable with responsibility. We ...