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Kenny v. New Brunswick Roofing and Cornice Works

Decided: January 26, 1938.

PETER A. KENNY, EXECUTOR OF THE ESTATE OF CATHERINE KENNY, DECEASED, PLAINTIFF-APPELLANT,
v.
NEW BRUNSWICK ROOFING AND CORNICE WORKS, A CORPORATION, AND PENNSYLVANIA RAILROAD COMPANY, DEFENDANTS-RESPONDENTS



On appeal from a judgment of the Supreme Court.

For the plaintiff-appellant, Edmund A. Hayes.

For the defendant-respondent New Brunswick Roofing and Cornice Works, Coult, Satz & Tomlinson and John J. Francis.

For the defendant-respondent Pennsylvania Railroad Company, George F. Lahey, Jr.

Donges

The opinion of the court was delivered by

DONGES, J. This is an appeal from a judgment of nonsuit entered in the Supreme Court at a trial at the Middlesex Circuit before Judge Barbour. Plaintiff sued as executor of the estate of his wife, Catherine Kenny, to recover for the death of said Catherine as the result, it is alleged, of a fall on ice on the sidewalk on Easton street, New Brunswick, under the tracks of the defendant Pennsylvania Railroad Company. At the point in question the street passes under the overhead structure carrying the tracks and there is an arched tunnel, with a stone sidewalk which appears to be about five feet high. The location is depicted on the right of the photograph, Exhibit D-2.

For a great many years there had been above the sidewalk a corrugated metal ceiling on the underside of the arch. A few days before plaintiff's decedent fell, the defendant New Brunswick Roofing and Cornice Works, acting under contract with the railroad company, removed this metal ceiling for the purpose of placing a new metal thereon. It was off at the time of the accident. Along the top of the sidewall and just below the arch was a gutter to carry off the water that was caught by the ceiling. There was no testimony that, at the time, the gutter was not functioning. It was to the contrary. Only the ceiling had not been completed.

The complaint was based upon the theory that the water and ice on the sidewalk were the result of the removal of the ceiling, and that defendants having undertaken the repair of the ceiling did the work in a negligent manner, in that, because of the absence of the metal ceiling, water dropped to the sidewalk and froze thereon. This likewise was the theory under which plaintiff presented his side of the case.

However, the plaintiff's proofs do not support such a case. The uncontroverted proof was to the effect that this condition of water and ice on the sidewalk at the point in question existed before the ceiling was removed for repairs and continued after the new ceiling was in place. It would appear that the water seeped through the sidewall and ran over the sidewalk, and in cold weather froze there.

The witness Vanderveer did say the water "came from where that metal ceiling was taken off." But on questioning by the court it developed that he had not seen the water running from that source and the court directed the jury to disregard his testimony in that respect.

In granting the motion for nonsuit the trial judge remarked that there was no proof that the water came down direct from overhead to the sidewalk. Appellant now complains that his claim should not be so limited. The following is a quotation from appellant's brief:

"Appellant admits that there was no proof in the case that 'water came down direct from overhead' onto the sidewalk, as stated by the trial ...


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