On appeal from the Middlesex Common Pleas Court.
For the appellant, William F. McCloskey.
For the respondent, David T. Wilentz.
Before Brogan, Chief Justice, and Justices Parker and Bodine.
The opinion of the court was delivered by
PARKER, J. The plaintiff, a farmer, was very seriously injured by the collapse of the "market shed" owned and operated by the city of New Brunswick. He obtained a large verdict for damages which was attacked as excessive on rule to show cause and upheld by the trial court. Exceptions to rulings of law were duly reserved, and are pressed here on this appeal.
The market shed was an old structure, in bad order, consisting apparently of a roof supported by four by four columns
spaced eight or ten feet apart. The shed was two hundred and fifty feet long and about fifteen feet wide, covering what is described as a concrete walk, and providing space for fifty "stalls" for which the city collected a fee from farmers using them. Plaintiff had stall No. 44 near the middle of one side. Whether on the morning in question, he had backed his truck into the stall, or what the exact situation was, is not very clear on the evidence, but the essential facts are that plaintiff was himself under the shed when the roof structure moved longitudinally toward Burnett street, the supporting columns all tilted over together, and the roof came to the ground with a crash, pinning the plaintiff under it. He testified that he would have been crushed to death except that his truck kept some of the weight off him.
The points made for appellant relate to denial of motions to nonsuit and direct a verdict for defendant: to alleged errors in the charge, and to one ruling on evidence.
The motion to nonsuit was put upon the grounds (a) that in operating the market, the city was engaged in a governmental function. We have held to the contrary in Ketcham v. Newark, 3 N.J. Mis. R. 399; 128 A. 579, and Zboyan v. Newark, 104 N.J.L. 258; (b) contributory negligence; (c) assumption of an obvious risk, and (d) that the relation of landlord and tenant existed, and that the tenant knowingly occupied a building in an obviously dangerous condition. The first three of these were reiterated in the motion to direct, but not the last.
The landlord and tenant theory may well be treated at this juncture. The evidence indicated that a city official had personal charge of the shed and collected a fee of so much per day for the privilege of using a stall. Some paid by the day, others for a longer time. Plaintiff said he had paid for a month in advance on October 1st. He was injured on the 6th. For present purposes it may be assumed, without deciding, that the relation of landlord and tenant existed, as to this particular stall. But neither motion, to ...