On appeal from the Supreme Court.
For the plaintiff-respondent, Bernard Freedman.
For the defendants-appellants, William H. Campbell, Jr.
The opinion of the court was delivered by
CASE, J. The appeal is from a judgment of the New Jersey Supreme Court affirming a judgment of the Essex County Circuit Court in favor of the plaintiff and against the defendants. The action was for personal injuries sustained by the plaintiff on December 1st, 1930, when she fell upon the sidewalk
in front of a property in the city of Newark owned by Margaret J. Sayre. Mrs. Sayre died during the progress of the suit, and her executors were substituted in her stead. Her son, Arthur L. Sayre, is brought in as a defendant both individually and as one of the executors.
Mrs. Sayre's building was back a few feet from the sidewalk. It was a combined dwelling and store and was occupied under lease by a tenant who had accepted the function of sweeping and cleaning the sidewalk. The entrance to the store was by concrete steps located on the premises. Into the lowest step were formerly embedded lamp posts, one on each side. Mrs. Sayre was, and had been, in Florida and had no actual knowledge of the events about to be related. In response to a request from a Mrs. Reinhardt, Arthur Sayre gave to the latter the lamp posts upon the condition that she would remove them. Mrs. Reinhardt agreed to that condition and procured the removal on or about November 26th, 1930, by one Demarest. On December 1st, 1930, at eleven P.M., plaintiff, in walking on the public sidewalk in front of the premises, stumbled over some fragments of loose stone and was injured.
It is first contended by the defendants that error was committed by the trial court in admitting, over their objection, certain of the interrogatories propounded to and answered by them without compelling all of the interrogatories and the respective answers to be introduced. That question was considered by this court in Seinner v. Public Service, &c., Transport, 107 N.J.L. 159, wherein it was said that the statute upon which the practice is based (section 140 of the Practice act, Comp. Stat., p. 4097) contemplates the introduction of the whole answer unless the parties otherwise agree. The reasoning of that opinion is that the various responses made by a party to a set of interrogatories proposed by the opposing party constitute a single paper designated as the "answer," that the opportunities for striking immaterial questions or irresponsive replies and of amending both the interrogatories and the answers are such that the interrogatories and the answers, as they are at the time of trial, are
presumed in the one case to be material and in the other to be responsive. We consider that that reasoning is sound and conclude that the entire answer, meaning the full set of responses, together with the eliciting interrogatories, should have been admitted or none should have been admitted, the parties not having otherwise agreed. In Cetofonte v. Camden Coke Co., 78 N.J.L. 662, and Beakly v. Freeholders, 81 Id. 637, such answers as were not admitted in evidence were so clearly not material as to overcome the presumption and the rejection was not harmful error. In the instant case at least some of the rejected interrogatories and responses were, in our opinion, material. For instance, plaintiff introduced the fifth interrogatory propounded to Mr. Sayre: "In what capacity, if any, were you in charge of the aforesaid premises?" together with the response: "Collector." The sixth interrogatory, clearly intended to ascertain whether the function covered by the preceding question was by Mrs. Sayre's employment, was: "Were you employed by the said Margaret J. Sayre to take charge of said premises, or were you her duly and authorized agent?" and the response was in the negative. The subject-matter was material to the issue and modified what went before. The sixth interrogatory and response were rejected. The fact that some of the information contained in the responses that were rejected later came into the case from the lips of witnesses does not free the ruling of its error inasmuch as it was the right of the defendants, some of the matters being admitted, to have the jury know that the remaining responses made by them were disclosed to the plaintiff.
The remaining point on the appeal is that defendants' motion for nonsuit should have been granted. This goes to the meritorious question of whether plaintiff had proved her case.
No complaint is made about the construction or state of repair of the sidewalk itself. It is not shown that the defendants, or either of them, owned the fee in the sidewalk lands. The issue does not involve an alleged nuisance on the ...