On appeal from the Essex County Court of Common Pleas.
For the appellant, Reginald V. Spell (A. William Wann, of counsel).
For the appellees, Jacob M. Goldberg.
Before Brogan, Chief Justice, and Justices Case and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This is a sidewalk case. The basic question involved relates to the liability of an owner of property for a nuisance created by the wrongful or negligent act of its predecessor in title, in making repairs to the sidewalk abutting said property, upon the owner having taken a deed for the property with such existent nuisance in the sidewalk.
On or about October 5th, 1935, Helen McHugh, while walking on the sidewalk, abutting defendant's property, which was alleged to have been in a broken, defective, uneven and irregular condition, caught and wedged her right foot, i.e., the toe of the shoe on her right foot, in a crack or crevice in the sidewalk as a result of which she tripped and fell and sustained injuries.
The proofs for the plaintiffs, none was offered for the defendant, was that Philip Gegenheimer was defendant's predecessor in title. The premises consist of four lots in the city of Newark; one has a house thereon, the other three are unimproved. About midway of the unimproved lots there was a tree between the sidewalk and the curb. In the spring of 1934 Gegenheimer observed that the frost or a root of the tree, or both, had raised a slab about an inch above the adjoining slab in the sidewalk. Although he was a carpenter, with no masonry experience, he did, together with the help of another man whose qualifications are not made to appear, set out to repair the sidewalk. They pried up the slab, removed the loose dirt underneath, made no effort to remove the root of the tree but scraped it, and then pounded the slab down with the handle of a pick axe and in so doing broke off the corner of the slab. Gegenheimer testified that the resultant repair did not make the sidewalk level. "It was straight across because sidewalks have to be flush with the curb. It was not level." But he also testified that there was no elevation
between the adjoining slab after the repair was made. In July following, the root of the tree again raised the elevation, making a difference of about one-half inch, and on July 26th, 1935, when defendant recorded the deed for the property, the elevation, at the point in issue had risen to a difference of about three inches. One witness testified this elevation to be three or four inches, another three and one-half inches, and the expert, a civil engineer, employed by the plaintiffs, found it to be four and one-half inches. This expert testified that it was caused by the root of the tree; that the root ran underneath the slab diagonally, more or less, with the break which is shown by the triangular piece (on Exhibit 2); that the proper and only method of replacing the elevated slab having a root underneath it in line with the break was to remove the root.
Defendant, as already indicated, offered no proof. Motions made in its behalf for nonsuit and to direct a verdict were denied. The case was submitted to the jury. They were also asked to answer the following questions: "1. Was the sidewalk repaired by Mr. Gegenheimer? 2. Did he in so doing leave the flagstone or a part of it elevated above the adjoining flagstone? 3. If you answer No. 2 in the affirmative, was the situation rendered more dangerous by whatever Mr. Gegenheimer did?" The jury answered the three questions in the affirmative and returned a verdict of $150 in favor of the wife and $200 in favor of the husband. It is the judgment based on that verdict that is now challenged.
Defendant argues that the court erred in denying its motions for nonsuit and for a direction of a verdict in its favor. That argument is made to rest on these grounds. "A. There was a complete failure of proof on the part of the plaintiff that a nuisance in fact existed on the sidewalk abutting the defendant's property. B. That, assuming a nuisance existed, it was there not as a result, but despite, the efforts of the defendant's predecessor in title. C. That, if ...