On appeal from the Essex County Circuit Court.
For the plaintiffs-appellants, Cohen & Klein.
For the defendant-respondent, Coult, Satz & Tomlinson.
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment entered in the Essex County Circuit Court, based upon a verdict directed by the court in favor of the defendant, Howard Savings Institution, hereinafter call the Howard Company, and against the plaintiffs, Rose Schwartz and Harry Schwartz, her husband.
On May 23d, 1934, the plaintiff Rose Schwartz sustained certain injuries as the result of a fall upon a flagstone sidewalk laid in front of and on the premises known as 337 Hawthorne avenue, Newark, which premises were then owned by the Howard Company. The fall was caused by the plaintiff Rose Schwartz tripping at a point where one flagstone had sunk so as to be two or two and one-half inches lower than the rest of the pavement.
The action involved in this appeal was brought to recover damages for the injuries sustained by the plaintiff Rose Schwartz and consequential damages sustained by her husband, Harry Schwartz.
The complaint alleged the defendant to be negligent by reason of maintaining a nuisance created by its predecessors in title having negligently constructed and repaired the said sidewalk.
At the trial, testimony was introduced by the plaintiffs to show that the sidewalk in question was originally laid in October, 1922, at the instance of Neils Jensen, the then owner of the property. Underneath the position of the sunken flagstone, above mentioned, there had been previously dug a trench for the placing of gas service pipes, which trench had been twice filled in to adjust the natural subsidence of the earth and the washing away by rain. It was shown that the flagstones were laid directly upon the earth, graded for that purpose so as to produce a level sidewalk. Between the house and sidewalk was a steep terrace of about three feet in height.
Some four weeks after the sidewalk was laid, and following a rain storm, this certain flagstone sank several inches. Louis Garelick, tenant and employe of Jensen, raised the stone and leveled it by the insertion of wooden blocks. Following another rain, several weeks later, the stone sank once more, and was this time leveled with small stones and rocks.
One Lena Scher, whose husband was owner of the property at 337 Hawthorne avenue from May 21st, 1924, until March 4th, 1933, testified that at various times during this period dirt and stones had been placed under the same flagstone to make it level, but that it had later sunk. She also stated that in rainy weather the water would drain from the terrace over and under the flagstone pavement, washing dirt into the street.
The fact of the uneven character of the sidewalk at this place was corroborated by numerous witnesses residing in the neighborhood of the premises in question. Expert testimony as to the construction of this sidewalk was offered by the plaintiff, in the form of ...