On appeal from the Essex County Circuit Court.
For the appellants, Joseph C. Paul.
For the respondent, Reginald V. Spell (Wilbur H. Stevens, of counsel).
The opinion of the court was delivered by
PERSKIE, J. The question requiring decision, in this cause, is whether plaintiffs proved a prima facie case of actionable negligence against defendant. Did the learned trial judge err in entering a judgment, based on a directed verdict, in favor of defendant? We think so.
Plaintiff Jennie M. Christine was a pedestrian who, on June 20th, 1935, about four-thirty P.M., fell over a bag of salt lying on the sidewalk in front of premises leased by defendant grocery company and situate at 466 Central avenue, in East Orange, New Jersey. The proofs disclose that she had been shopping; that immediately prior to the accident, she had come from a novelty shop just to the east of defendant's store; that, while walking in front of defendant's premises, she turned her head to look for an approaching bus to take her to her home, and that while so looking, she fell over a one hundred-pound bag of salt which she had not seen before, and which was lying about three or four feet from, and at right angles to, the curb, immediately in
front of defendant's premises. Plaintiff was rather seriously injured and was taken to defendant's store. While she was in the store a Mr. Connolly, the manager thereof, ordered the bag to be taken from the sidewalk. This order was apparently obeyed and the bag was removed. Some months later, in October, 1935, the plaintiff was talking with Mr. Connolly, who, in addition to being the manager of the store was also her neighbor, and the latter said that the accident was "just one of those things and it [bag of salt] had lain there too long." This testimony was admitted over defendant's objection. It was inadmissible. Clearly, it was no part of the res gestce, and there is nothing in the record to indicate that in so speaking Connolly had the authority to bind defendant. Thompson v. Giant Tiger Corp., 118 N.J.L. 10; 189 A. 649 (Court of Errors and Appeals, 1937). But no point is made on this score. Following evidence as to injuries the plaintiffs rested. Defendant offered no proofs but moved for a directed verdict on the grounds (1) that there was no testimony of a nuisance created or maintained by the defendant, and (2) that there was also no evidence as to any negligence on the part of the defendant. The trial judge granted the motion upon the grounds urged. A judgment of nonsuit was entered -- apparently by error. By order of the court, consented to by the respective parties, this judgment was corrected to read "no cause for action." Appeal to this court from the judgment as corrected was then instituted by the plaintiffs. The sole ground argued is that the trial court erred in not submitting the case to the jury.
It is well settled that, in passing upon a motion for a directed verdict, the evidence will not be weighed. All of the evidence which supports the claim of the party against whom the motion is made must be accepted as true, and he is entitled to the benefit of all legitimate inferences which may be drawn therefrom. And where fair minded men might honestly differ as to the conclusions to be drawn from facts, whether controverted or uncontroverted, the question at issue should be submitted to the jury. Repasky v. Novich, 113 N.J.L. 126; 172 A. 374; Shields v. Yellow Cab,
Inc., 113 N.J.L. 479, 483; 174 A. 567; Israel v. Travelers Insurance Co., 116 N.J.L. 154; 182 A. 840. Cf. Goldin v. Universal Indemnity Insurance Co., 117 N.J.L. 192; 187 A. 194 (involving a nonsuit). Did the learned trial judge, by directing a verdict for the defendant under the circumstances here exhibited, violate this principle? We think so.
It is, of course, a firmly imbedded principle in our jurisprudence that any obstruction unnecessarily incommoding or impeding the lawful use of a street by the public is a nuisance for which, upon the happening of an accident as a result thereof, the creator of the nuisance must respond in damages. Durant v. Palmer, 29 N.J.L. 544, 547; Houston v. Traphagen, 47 Id. 23; Weller v. McCormick, 52 Id. 470; 19 A. 1101; Meyers v. Birch, 59 N.J.L. 238; 36 A. 95; Sutphen v. Hedden, 67 N.J.L. 324; 51 A. 721; Braelow v. Klein, 100 N.J.L. 156; 125 A. 103; Handlon v. Copestone Temple Association, 106 N.J.L. 362; 150 A. 356; Garvey v. Public Service, &c., Transport, 115 N.J.L. 280, 284; 179 A. 33; Hallett v. Wm. Eisenberg & Sons, Inc., 116 N.J.L. 201, 206; 183 A. 143; Wasilewski v. McGuire Art Shop, 117 N.J.L. 264, 266; 187 A. 530. And, moreover, no one is required to be on constant guard and vigil to find such obstructions. Everyone has the right to rely on the fact that the sidewalk will be free from unnecessary impediments. Durant v. Palmer, supra; Houston v. Traphagen, supra. Cf. Mathele v. United States Express Co., 86 N.J.L. 586; 92 A. 399 (Court of Errors and Appeals); Nerney v. Stanley-Fabian Corp., 106 N.J.L. 317; 150 A. 370 (Court of Errors and Appeals). There can be no doubt but that the bag of salt on the sidewalk was an unnecessary obstruction. Defendant urges, ...