On appeal from the Supreme Court.
For the appellants, George S. Silzer.
For the respondents, John E. Selzer and John G. Flannigan.
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. This is an appeal from a judgment of nonsuit in an action in the Supreme Court tried at the Bergen Circuit.
The borough of Cliffside Park, in preparation for a celebration and dedication of a soldiers' monument on Decoration Day, 1929, through action of its governing body, appointed a committee of some of its own members and citizens for the purpose of making proper and suitable arrangements, among which things to be done was the erection and securing of certain stands to accommodate the public and those participating in the services.
The chairman of this committee applied to a corporation known as the Thomas A. Deming Company, Incorporated, which seems to have specialized in this class of work, with the result that this company was engaged to erect and rent to the borough certain specified stands and chairs to be used thereon.
In connection with, and as one of the features of the celebration, one Blanche Arral Wheeler arranged for and trained a, so-called, community chorus, and in order to secure to the members of such chorus a sitting place on one of these stands, erected for such purpose, she was authorized by the committee to issue, and did issue, tickets for that purpose to the several members of the chorus. The plaintiffs below were members of this chorus and to them and others were issued tickets of the kind, and for the purpose, before referred to, by Blanche Arral Wheeler, and the plaintiffs took and occupied seats upon the stand erected for such purpose. On the day of the ceremonies and after the services had, to some extent, proceeded, the stand collapsed, and the plaintiff Edna T. Clark was seriously injured.
She, with her husband, brought action against the borough of Cliffside Park, a municipal corporation, against the mayor and councilmen, the members of the committee, Blanche Arral Wheeler and Thomas A. Deming, individually, for damages sustained by her and her husband resulting from the alleged negligence of them, all or some, in the erection of the stand that collapsed.
At the trial the only proof of negligence was the undisputed fact that the stand collapsed and the testimony of the plaintiff Mrs. Clark that after the collapse of the stand she
found a piece of wood, full of nailholes and which "looked like it had been used ...