On appeal from the Supreme Court, Morris Circuit.
For the plaintiffs-respondents, Paul Colvin.
For the defendant-appellant, Samuel C. Meyerson.
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. This is an appeal from a judgment in favor of the plaintiffs-respondents and against the defendant-appellant entered on a verdict of a jury in an action in negligence to recover for injuries sustained by the respondent Dorothy Fredericks, when she fell on a metal covering of a storm gutter located within the street lines of Mount Hope avenue, in the town of Dover, and for damages of her husband, Samuel Fredericks, the other plaintiff-respondent, as the result of his wife's injuries.
The complaint charges that the town of Dover, the appellant, owed the respondent Dorothy Fredericks a duty to
refrain from active wrong doing and that this duty was violated when the appellant negligently constructed a sidewalk, road, and gutter in the location in question in such a manner as to constitute active wrong doing on its part in that it placed a metal covering over the gutter, constituting an extension of the sidewalk, at a dangerous pitch and that the same was extremely smooth so that it constituted a hazard to persons walking thereon.
The answer set up a general denial and three separate defenses: (1) the statute of limitations, (2) contributory negligence, (3) that the duty of maintaining the road was solely that of the county of Morris.
Under the respondents' theory it became essential that they prove the hazard or danger complained of was the result of a failure in the design or plan or the wrongful construction of the sidewalk, road, and gutter, rendering their use dangerous and likely to cause harm to persons, exercising proper care, lawfully using the sidewalk, road, and gutter, and that the appellant was the active agent or instrument in the creation of this perilous condition. Robinson v. Ocean Township, 123 N.J.L. 525, 528; Allas v. Rumson, 115 Id. 593, 596.
The street improvement in question was erected in 1924, by the appellant and under its supervision. A properly qualified engineer, testifying on behalf of the respondent, testified that, in his opinion, the construction of the gutter and cover in the form in which it was erected and existed violated good engineering practice. He based this conclusion upon two reasons: first, that there was a grade of one inch per foot in the cover, resulting in a dangerous pitch, for use by pedestrians, and secondly, that the plate was a smooth type, when good engineering practice required that a corrugated or multigroove plate be used, stating that the advantage of the corrugated or multigroove plate is that it is much more difficult to slip on than the ordinary smooth type plate used in this construction. He testified that the pitch in the plate could have been avoided in the original construction by raising the pitch of the sidewalk, entailing only a small additional expense.
The witnesses for the appellant testified that this particular cover and gutter were properly constructed and as to the type of plate used, the town engineer conceded that the corrugated or multigroove plate affords a greater ...