On appeal from the Hudson County Court of Common Pleas.
For the appellant, Edwards, Smith & Dawson (Raymond Dawson, of counsel).
For the appellee, Archie Elkins.
Before Brogan, Chief Justice, and Justices Parker and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This is a sidewalk case. Defendant appeals from a judgment, based upon a jury verdict of $600, in favor of plaintiff.
The single question argued and requiring decision on the facts of this case is whether the trial judge erred, as it is claimed he did, in denying defendant's motions to nonsuit and to direct a verdict in its favor.
Plaintiff was a tenant for about eight years in defendant's apartment house at 18-20 Enos Place, Jersey City, New Jersey. About eleven o'clock on the night of June 12th, 1938, he drove his car to the front of the apartment house. As he stepped onto the sidewalk fronting the apartment house, he fell because of a hole in the sidewalk at or near the curb. He sustained injuries and resultant damages for the recovery of which he instituted this suit.
The complaint consists of two counts. In substance, the first count charged that defendant was guilty of actionable negligence in that it failed to keep the sidewalk in a "flat
and level manner," in conformity with other sidewalks on the same street so that pedestrians might safely pass thereon, and that defendant failed to "apprize" pedestrians using the sidewalk of its "unsafe and perilous condition." The second count, charged defendant with the "wrongful and unlawful construction and maintenance" of the sidewalk so that it became dangerous and unsafe for the users thereof. In a word, it charged that the sidewalk, as maintained, constituted a "menace and a nuisance."
Defendant's answer denied liability. Additionally, it set up the affirmative defenses, to both counts, of contributory negligence and assumption of risk.
In light, however, of the proofs adduced, liability, if any, on the part of the defendant here can be sustained only if those proofs and the proper inferences to be deduced therefrom can fairly and reasonably be held to support the conclusion that defendant knowingly permitted an "improper use" to be made of the sidewalk. Was such use for the "benefit" of defendant? Were both the use and the benefit tantamount to a "participation" by defendant in the creation and maintenance of the nuisance as charged so that it breached its duty to see to it that a ...