On appeal from the Monmouth County Court of Common Pleas.
For the appellant, Applegate, Stevens, Foster & Reussille.
For the respondents, Quinn, Parsons & Doremus.
Before Brogan, Chief Justice, and Justices Case and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This appeal involves the tort liability of a municipal corporation. The law on this subject is clear. The principles of law which govern have been stated and restated many times. Thus it is now well settled that "a municipality is not liable to an individual for its failure to exercise an imperative governmental function, or for negligence of its officers or agents in the performance of a public duty, imposed upon it by law." Allas v. Borough of Rumson, 115 N.J.L. 593, 594; 181 A. 175. It is now also equally well settled that "this exemption from liability does not extend to private injury resulting from active wrongdoing chargeable to the municipal corporation." Allas v. Borough of Rumson, supra. The application of these principles to various factual situations frequently gives rise to hardships and difficulties. In reason and logic, it is difficult to understand why there should be any distinction between passive and active wrongdoing. For, in either event resultant consequences to the injured party are, of course, the same. Thus many legal authors contend with force and conviction that there appears to be no justifiable reason why a municipality should be any the less or more culpable for the negligent doing of an act than for the negligent failure to do the act. Nevertheless, this distinction does exist. And until the legislature decrees otherwise, it must and shall be respected and followed.
To determine, therefore, the applicability of these principles to the case at bar we recur to the facts.
In the early hours of the morning of September 8th, 1934, while driving a truck in the course of his employment as a milkman, plaintiff met with an accident giving rise to the injuries for which he now seeks to recover. It appears that the defendant, county of Monmouth, had made an excavation in the center of the highway in order to repair bricks in a culvert. The plaintiff saw the hole, but too late to avoid the accident. The rear wheels of the truck he was driving dropped into the excavation and the truck overturned. At the time of the accident there seem to have been no lights to warn oncoming motorists, and there were no guards or barriers surrounding the work. During the course of the trial defendant's motion for a nonsuit and a directed verdict were denied. The jury returned a verdict for the plaintiff in the sum of $2,500 and $100.91 costs, and rule to show cause why a new trial should not be granted on the grounds of excessive damages and the verdict being contrary to the weight of the evidence was argued and discharged. Defendant then instituted this appeal.
First: Defendant contends that the trial court fell into reversible error in refusing to grant a nonsuit or direct a verdict in its favor. Since this contention is founded on the premise that at the time the injuries were sustained by the plaintiff the defendant was engaged in a governmental duty imposed on it by the legislature, we approach a consideration of the basic question involved. Was there active wrongdoing chargeable to the county in the case at bar? We think so. Concededly, in repairing this culvert, the county was doing an obligatory act under legislative mandate. Pamph. L. 1918, p. 607. In State v. Erie Railroad Co., 84 N.J.L. 661, 663; 87 A. 141, this court held:
"Briefly stated, the doctrine of our cases is that where the doing of a thing that would otherwise be a public nuisance is authorized by the legislature, the doing of that thing by the person authorized, in the manner and for the purpose authorized, cannot constitute a public nuisance in the absence of negligence, and such negligence must consist of something more than the mere doing of the authorized act."
We think that in the instant case there was "something more than the mere doing of an authorized act." Under the proofs it was open to the jury to find, on the disputed facts, if it so chose, that there were neither proper or sufficient lights nor barriers around the excavation. Thus, notwithstanding that the legislature authorized the repair to this culvert, and that the only way the culvert could be repaired was by an excavation in the highway, nevertheless the failure of the county to provide adequate protection constituted active wrongdoing on its part. Such failure to protect motorists transcends the bounds of mere passive negligence. The wrongdoing herein alleged is positive misfeasance within the holdings of our cases. In the case of Florio v. Jersey City, 101 N.J.L. 535, 537; 129 A. 470; 40 A.L.R. 1353, this court held: "The active wrongdoing must be chargeable to the municipality in order to render it liable, e.g., where a municipality directs its employes to dig a hole in a public highway and leaves it unguarded, or participates in some other act of misfeasance of its employes through which a person suffers injury." See, also, Jersey City v. Kiernan, 50 ...