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Volke v. Otway

Decided: October 9, 1935.

MARINDA VOLKE AND FRED VOLKE, PLAINTIFFS-APPELLANTS,
v.
EMMA H. OTWAY, EXECUTRIX OF THE ESTATE OF HORATIO H. OTWAY, DECEASED, AND FRANK A. JAEGER, DEFENDANTS-RESPONDENTS



On appeal from the Hudson County Circuit Court.

For the appellants, Wallace P. Berkowitz (Alfred Brenner, of counsel).

For the respondents, Nicholas J. Cafarelli (John Milton, of counsel).

Hetfield

The opinion of the court was delivered by

HETFIELD, J. The appellants, husband and wife, instituted suit in the Hudson County Circuit Court, to recover damages from the owner and tenant of premises situated at No. 915 Bergenline avenue, Union City, by reason of personal injuries sustained by the wife, who, it is alleged, on the 24th day of December, 1927, caught her foot in a depression in the sidewalk adjacent to said premises, causing her to trip and fall.

The trial resulted in a nonsuit as to both defendants, which is alleged as error, and the sole ground of appeal.

The original complaint charged that the defendants were negligent in that they permitted the iron doors covering the stairway leading to the cellar of said building to fall back

upon the concrete sidewalk whenever they were opened, which caused the sidewalk to become broken and damaged to such an extent as to cause a dangerous and defective condition. This charge of negligence was subsequently abandoned by the plaintiffs, and the complaint was amended so as to allege that the dangerous and defective condition of said sidewalk constituted a nuisance, and was caused by reason of subjecting same to extraordinary use, by permitting motor-driven and horse-drawn trucks to drive upon the sidewalk, and that heavy boxes, barrels and articles of merchandise were thrown thereon from said trucks.

The proofs presented at the conclusion of the plaintiff's case show that the hole or depression which caused the plaintiff to trip was located about a foot from the cellar door, between said door and the curb, and that this particular defect in the sidewalk was observed by one of the witnesses in 1918, but there is nothing to indicate how long it had existed prior to that time. There was also testimony to indicate that on several occasions subsequent to 1921, trucks, while unloading merchandise in front of the property involved, would have two wheels on the curb, in order to allow trolleys to pass; that heavy barrels and boxes were removed from the trucks, either by using a pair of skids, or dropping same upon the sidewalk, and then taken to the cellar of the building, and that the sidewalk had been in poor condition and the curb broken for several years prior to the accident in question. There was no testimony, however, to show in what manner merchandise, if any, was delivered during the year 1918 or prior thereto, nor any proof as to what created the depression, which it is alleged caused the plaintiff to trip and fall.

The theory upon which liability was claimed was the maintenance of a nuisance on the public highway, the creation of which was participated in by the defendants, in subjecting the sidewalk to a use for which it was not intended when constructed; and it is argued that the proofs supported this contention because the defective condition of the sidewalk was caused by permitting the merchandise to be delivered in the manner indicated, and that as the goods were transferred to the cellar of the building, they must have been for the use

and benefit of the tenant. The record shows that the tenant, who conducted a bakery business on the premises, entered into a lease with the landlord on October 1st, 1924, for a term of six years, which commenced on the first day of May, 1924, whereby the premises rented consisted of the store floor, together with the floor above the store and the rear portion of the cellar, so the mere fact that goods were delivered and placed in the cellar would not justify the inference that the merchandise delivered by the trucks was intended for the defendant, as there was no evidence to indicate by whom or for what purpose the remaining portion of the cellar was used. There is nothing in the record, with one exception, to indicate the character of the merchandise delivered. One Davis, a witness, testified that during a period of five years prior to 1927 he had noticed trucks standing in front of defendant's store, with two wheels on the curb, unloading flour, which it is contended, justifies the inference that it was intended for the bakery, ...


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