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Fisher v. Town of Nutley

Decided: May 11, 1938.

MABEL B. FISHER AND J. KERWIN FISHER, HER HUSBAND, PLAINTIFFS-RESPONDENTS,
v.
TOWN OF NUTLEY, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the defendant-appellant, Edwin J. C. Joerg.

For the plaintiffs-respondents, Coult, Staz & Tomlinson (Joseph Coult, Jr., of counsel).

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. This is the appeal of the defendant below from a judgment of the Supreme Court entered in favor of the plaintiffs on the verdict of a jury against the defendant town of Nutley.

The plaintiffs sued to recover for personal injuries suffered by the plaintiff Mrs. Fisher, and consequential damages suffered by her husband, growing out of an injury to the wife by reason of running into an iron pipe in a street in the town of Nutley while plaintiffs were coasting. The suit was tried upon the theory that the injury was caused by the active wrongdoing of the town and the jury so found.

The plaintiffs' evidence tended to show these facts: The municipality had set apart the public highway known as Rutgers Place hill for coasting. Barriers were erected at the top and bottom of the street, and on intersecting streets, and municipal agents were stationed there. While coasting down the hill the plaintiffs' sled was diverted by a rough spot in the snow and swerved to the side of the road where, as a result of preparation for the coasting, snow had been "piled up," and their sled collided with a large iron pipe, placed there along the roadside by the town, and protruding into the street. The pipe was about sixteen feet long, weighed about five hundred pounds, and had "some snow over it." The result was personal injury to Mrs. Fisher, the plaintiff.

The defendant's first point on this appeal is that the complaint failed to charge active wrongdoing and that it should have been struck out on defendant's motion.

We think this point is without substance. The complaint charged, among other things, that the municipality deposited the pipe on the public highway in question, which had been designated and set apart for coasting, without warning or other safeguards to those lawfully so using the highway. The

defendant seems to argue that the complaint merely charged negligence in the performance of a public duty, and that therefore the municipal corporation was exempt from liability. But this contention is ill-founded both in point of fact and in law. The exemption of a municipal corporation from actions by individuals suffering special damages from its neglect to perform or negligence in performing public duties, whereby a public wrong is done for which an indictment will lie, does not extend to actions where the injury is the result, as here charged, of active wrongdoing chargeable to the corporation. Kehoe v. Rutherford, 74 N.J.L. 659; Town of Union v. Durkes, 38 Id. 21; Hart v. Freeholders of Union, 57 Id. 90. That the charge in the present case amounted to a charge of active wrongdoing there can be no doubt.

The defendant next argues that its motions to nonsuit and to direct a verdict should have been granted because of want of evidence that there was active ...


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