On defendant's appeal from the District Court.
For the appellant, Samuel W. Zerman (William J. Morrison, Jr., of counsel).
For the respondents, Nathan Baker.
Before Justices Trenchard and Parker.
The female plaintiff, while walking along a concrete sidewalk near a street corner in North Bergen, fell because her foot caught in an appliance called in the testimony a "curb box" which had been installed by the appellant company and which, at the time of the accident, projected somewhat above the general surface of the sidewalk. The evidence was contradictory as to the extent to which it so projected, but that was a matter of fact to be settled by the trial court on the evidence. Plaintiffs claimed that it extended up about three inches and there was evidence to support this. The plaintiff's husband joined per quod and the trial, had without a jury, resulted in a judgment of $150 in favor of the wife and $50 in favor of the husband. The defendant appeals and the reasons given are, that the court denied a motion for judgment at the close of the entire case, and that the court rendered a judgment for the plaintiffs. The claim on behalf of the plaintiffs was, generally, that the curb box had been
installed by the defendant and was maintained by it; that its projection above the sidewalk level was due to the negligence of the defendant and, furthermore, that it amounted to a nuisance. Defendant admitted having installed the curb box some twelve or thirteen years previously, but claimed that at the time of the accident the curb box was not its property, and that it had no control over it and was charged with no responsibility in regard to its maintenance. We conclude, after a careful examination of the evidence, that the defendant showed the following facts without substantial contradiction:
1. That at the time of the installation of the box there was no sidewalk, but that it was set at the sidewalk level as furnished by the city engineer.
2. That at the time of such installation, the property abutting the sidewalk at this point was a vacant lot, and was a vacant lot at the time of the accident; also, that at the time of the accident it was the property of the municipality.
3. That when the sidewalk was laid by the municipality, it was laid at the proper level and flush with the top of the curb box.
4. That over a period of years the sidewalk at this point had settled due to the condition of the soil and that this resulted in the curb box protruding slightly above the sidewalk level.
5. That the curb box was installed by the defendant company in anticipation of the laying of the sidewalk as part of a general plan, and with a view of future connection with any building that might be erected on the lot in question, but that no such building was ever erected.
6. That this curb box, like the others in the neighborhood, had been installed by the defendant primarily under an arrangement with the municipality at a cost of $18.27, which was paid at the time by the municipality, and the latter becoming the owner of the curb box and connection, and the water company ceasing to have any interest in it or right over it except that in case it should spring a leak, the ...