On appeal from the Supreme Court.
For the plaintiff-appellant, Harold A. Jewett, Dougal Herr and William A. Kaufmann.
For the defendant-respondent, Henry H. Fryling and Carl T. Freggens.
The opinion of the court was delivered by
BODINE, J. The plaintiff appeals from a judgment of nonsuit. It appears from the record that on the morning of December 6th, 1933, he was being driven to school by a Mrs. Gillette. She had turned her car from Esmond Place into Columbus Drive in Tenafly. While going along this roadway her car skidded for about one hundred and fifty feet. There was a steep down grade and a high crown in the middle of the road. The edges of the pavement were irregular and broken. The car, out of control, collided with a pole erected by the defendant company. Upon the pole had been placed a transformer weighing about one hundred and seventy pounds. The transformer was not bolted to the pole or cross-arm,
but strap irons fastened to it rested upon the cross-arm. This cross-arm was at an angle sloping a total of nine inches toward the roadway. The pole had not been planted straight, so that it had always leaned three feet towards the traveled portion of the roadway and was partly over it. After the car came to a stop, the plaintiff jumped out of the rear seat, in order to determine the extent of the damage, and was struck on the head by the falling transformer evidently dislodged by the impact.
The plaintiff rested his claim upon the theory that the defendant company was negligent with respect to the installation and maintenance of the transformer in the position in which it was, and that it had also failed to make proper inspection which would have revealed the danger.
The court rested the nonsuit on the ground that there was no evidence with respect to any standard recognized as such, and further that there was no proof that there was any defect in the installation of the transformer, either apparent or discoverable by reasonable inspection.
The proofs, as to the method in which the pole had been planted and the transformer placed thereon, made it a question for the jury to say as to whether a heavy transformer, placed with unfastened strap irons, on a cross-arm off horizontal, on a pole leaning over the highway evidenced a lack of reasonable care for the safety of the traveling public. The defendant was bound to exercise ordinary care and skill in the erection and maintenance of the pole and transformer so that they should not become a menace to the public, and the plaintiff had the right to assume that such was the case. Sutphen v. Hedden, 67 N.J.L. 324.
The court found, as a matter of law, that it could not find that the circumstance that the pole was not straight and that the cross-arm was not straight was negligence per se. It does seem, however, that those circumstances, with the other circumstances proved, were some evidence from which the jury could have found that the defendant company failed to exercise that degree of care in placing and maintaining the pole and transformer in a public highway which reason and prudence dictate.
It is conceded that the construction of the pole was authorized, but no permit can authorize the construction and maintenance in the highway of a structure dangerous to ordinary travel. Opdycke v. Public Service Railway Co., 78 N.J.L. 584.
The proof as to the impact between the car and the pole is conflicting. Some say it was a heavy crash; others a mere grazing. Even assuming it to have been a heavy crash, the jury could still have found that the pole and transformer were so constructed and maintained that the ...