The opinion of the court was delivered by: FORMAN
Plaintiff, a resident of New York, alleges that defendants, residents of New Jersey, either jointly or severally constructed and maintained a highway which traversed an existing railroad track operated and maintained by the Lehigh Valley Railroad Company at a point existing on a downhill grade, and that the downhill rail of the track was elevated one inch above its parallel rail by virtue of a curve in the track at the point of intersection. Plaintiff complains of the fact that the level of the highway was constructed and maintained one inch below the downhill rail of the track, thereby creating a nuisance and a dangerous situation. Plaintiff, a passenger in an automobile which crossed the rail, alleges that by virtue of the improper construction and maintenance of the highway she was thrown with great force forwards and upwards, suffering severe injury. The complaint alleges facts indicating that the defendant, County of Hunterdon, had notice of this "nuisance" and "dangerous situation", and that subsequent to plaintiff's injury, the level of the highway was repaired and caution signs were erected so that now the "dangerous situation" no longer exists.
The defendant, Township of Holland, a municipal corporation, and the defendant, County of Hunterdon, another governmental entity, now move to dismiss on the ground that no cause of action is stated.
Each motion is based upon the proposition that a governmental agency engaged in a governmental function can be held for damages in tort only for "active wrongdoing" or "mis-feasance", but is not responsible for acts of "passive wrongdoing" or "non-feasance". The parties hereto agree in the foregoing principle, but are at issue in its application to the facts herein.
In addition, defendants contend that the following statute precludes recovery in any event: "No municipality or county shall be liable for injury to the person from the use of any public grounds, buildings or structures, any law to the contrary notwithstanding." Revised Statutes of New Jersey, 1937, 40:9-2, N.J.S.A. 40:9-2.
Whatever confusion may have existed in the application of the above stated proposition, the decision of Justice Heher in the case of Allas v. Rumson, New Jersey Court of Errors and Appeals, 1933, 115 N.J.L. 593, 181 A. 175, 102 A.L.R. 648, sets forth the state courts' present conception of what constitutes a mis-feasance or non-feasance. Hence, it will be unnecessary for this court to examine the New Jersey cases prior to that decision. Therein, the defendant, a municipality, had constructed a ramp without guard rails on lands devoted by it to a public footway extending to its municipal building in which the plaintiff was injured. The court stated the rule to be as follows: "The true distinction seems to be whether the private injury has resulted from a wrongful act or positive misfeasance, as distinguished from mere negligence. A private action must rest upon some positive, affirmative act, 'wrongful in itself, and detrimental to the plaintiff.'" 115 N.J.L. 593, 595, 181 A. 175, 176, 102 A.L.R. 648.
This principle was then applied in the following language: "So tested, the evidence here presents a case of active wrongdoing attributable to the municipal corporation. The misfeasance consisted in the building of a ramp so fashioned as to constitute a place of danger. In constructing this sloping passageway, without guard rails or barriers upon the adjoining ground levels, or other device adequate to protect against injury persons exercising reasonable care in the use of the premises, the municipality was the active agent or instrument in the creation of a condition perilous to human safety on lands devoted by it to a public footway extending to its municipal building; it was directly responsible for the dangerous construction that, in the darkness of night particularly, constituted an ever present menace to the personal safety of the users of the premises. This is not a case of mere neglect by the municipality, or negligence in the performance of a public duty imposed upon it by law; nor is it classable as the negligent performance of a public duty directly imposed by law on its officers. * * *" 115 N.J.L. 593, 595-596, 181 A. 175, 176, 102 A.L.R. 648.
Defendants endeavor to distinguish Allas v. Rumson, supra, on the ground that the injury therein arose in a public building, whereas the injury involved herein arose on a public highway. But this very argument was answered in Allas v. Rumson, as the following excerpts will indicate:
"* * * The liability of a municipality with respect to its public highways does not rest upon a different basis." 115 N.J.L. 593, 600, 181 A. 175, 179, 102 A.L.R. 648.
"* * * and we are unable to perceive a sound reason for holding the municipality liable for active wrongdoing in the one case and not in the other, or for an essentially different classification of the municipal act or conduct when it concerns a passageway of more limited use than a general public highway. Positive misfeasance in the one case bears the same classification in the other. They do not admit of a distinction in principle. The difference between the use of the premises here and the sidewalk or footpath which is a part of a general public highway is one of degree merely and not of kind." 115 N.J.L. 593, 601, 181 A. 175, 179, 102 A.L.R. 648.
No departure in the application of the principle of the above case or any inconsistency therewith has developed in the evolution of the rule in question. A number of cases have followed the policy laid down therein and a brief analysis of them will suffice to indicate this unanimity of decision.
In the case of Hammond v. County of Monmouth, 117 N.J.L. 11, 186 A. 452, the defendant had made an excavation in the center of the highway in order to repair bricks in a culvert. The rear wheels of the truck plaintiff was driving dropped into the excavation overturning the truck, giving rise to the injuries involved. The court held that a failure to guard adequately the excavation constituted active wrongdoing.
The case of Fisher v. Town of Nutley, 120 N.J.L. 290, 199 A. 40, presents a situation wherein the complaint charged, among other things, that the municipality deposited an iron pipe on the public highway which had been designated and set aside for sledding without warning or other safeguard to those lawfully using the highway. Defendant attacked the complaint on motion to strike, because it failed to charge active wrongdoing on the part of the defendant. The court refused to strike the complaint and held that the allegation amounted to a charge of active wrongdoing.
Lentini v. Town of Montclair, 122 N.J.L. 355, 5 A.2d 692, involves a complaint wherein it was alleged that the defendant, a municipality, excessively oiled the surface of a public highway in the repair thereof, thereby creating a dangerous situation and a nuisance which caused injury to the plaintiff. ...