On appeal from the Supreme Court, whose opinion is printed in 15 N.J. Mis. R. 5.
For the appellant, Abraham Motolinsky (Edmund A. Hayes, of counsel).
For the respondent, Hicks, Knuhlthau & Thompson (Douglas M. Hicks, of counsel).
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. The respondent became the owner of premises at the northwest corner of New and Neilson streets in New Brunswick through a deed from the sheriff of Middlesex county, recorded May 22d, 1930. Apparently there was a building upon the land and an airway, covered by an iron grating which had been constructed within the sidewalk line adjacent to the building on Neilson street to furnish air and ventilation to the cellar of the building.
Although the proofs do not appear to show when or by whom this airway was constructed it is probable that it was so built by some person, predecessor in title to the respondent. For the purposes of this case this is unimportant because the respondent apparently was in possession of the premises from May, 1930, when on August 24th, 1935, the appellant in walking along Neilson street stepped on the grating and it gave
way and tilted, precipitating him into the airway, and he was injured.
He brought an action against the respondent alleging "said defendant, carelessly and negligently permitted and allowed said iron grating and its supporting foundation to become worn, broken, slippery, neglected and out of repair, so that when plaintiff was walking along said street and stepped on said grating, it slipped out of place, broke and gave way and plaintiff was precipitated into said opening which was about five feet deep, with great force and violence."
At the conclusion of the plaintiff's case the defendant rested and moved for a direction of verdict in its favor, upon the ground that there was no proof that it had notice of any condition of disrepair in the grating and upon that ground the trial judge directed the verdict as requested.
Upon appeal to the Supreme Court this action was affirmed.
We conclude that the Supreme Court and the Common Pleas of Middlesex, the trial court, erred.
The construction of the airway with the grating, flush with the sidewalk, was not a nuisance per se but was a thing the adjacent owner might do subject to the right of free and safe passage of the public over and along every part of the sidewalk. However, the owner, in making such use of the way was required to do so by such a method of construction as not to create a nuisance but having done this was under the further legal duty to exercise reasonable care to keep the structure safe for the use of the public. Myers ...