On appeal from a judgment of the District Court of the Second Judicial District of the county of Hudson.
For the appellant, Franklin J. Marryott.
For the respondent, Levitan & Levitan (Abraham Levitan, of counsel).
Before Justices Trenchard, Bodine and Heher.
The opinion of the court was delivered by
HEHER, J. Plaintiff seeks reparation of an injury consequent upon defendant's asserted tortious conduct. The jury empaneled to try the issue returned a verdict in favor of plaintiff; and defendant appeals from the ensuing judgment.
These are the pertinent facts and circumstances: Defendant and one Fitzsimmons were the owners of contiguous tracts of land. Defendant erected a garage on its lands, adjoining
a fence built upon what the jury could have found from the proofs was the common boundary line. The garage roof sloped downward to the boundary line, with a pitch of nineteen degrees. The fence was eight feet high. The edge of the overhanging garage roof was between a foot and a foot and a half above the fence top. On February 5th, 1936, while plaintiff was upon Fitzsimmons' premises, at his invitation, engaged in making repairs to his automobile, an icy mass, about eight and one-half inches thick, four feet wide and eight feet long, formed from snow and sleet which had accumulated on the garage roof over a period of weeks, and loosed by the elements, slid off the roof onto the plaintiff's back, inflicting the injuries for which recovery was had. There was no gutter, trough or other structural safeguard against such an occurrence. The sliding mass consisted of "three inches of ice, two and a half inches of snow, about three inches of sleet." It was a warm day, and thaw had set in.
The primary subject of inquiry, raised by motions to nonsuit and to direct a verdict in defendant's favor, is the existence of evidence to sustain the finding of liability.
First: It is said, in limine, that plaintiff was a trespasser upon defendant's property. This is predicated upon testimony adduced by defendant that "the fence in question was 4.6 feet to 5.74 feet inside the line of" defendant's property. But it was open to the jury to find from the proofs that Fitzsimmons had acquired a prescriptive right to the lands enclosed by the fence. The propriety of the submission of this factual inquiry to the jury was not raised by the motions adverted to; nor is the legal sufficiency of the pertinent instruction questioned.
Second: The trial theory was the negligent non-performance of a duty owing to the adjoining landowner and his invitees. The question thus presented seems to be res nova in this state; and its resolution requires recourse to the principles of the common law.
It was a primary concept of that system -- fundamental in the social compact -- that a landowner ...