On appeal from the Passaic County Circuit Court.
For the appellant, William V. Rosenkrans.
For the appellee, David Cohn.
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 on a reduced jury verdict, of the Passaic County Circuit Court in favor of plaintiff.
The plaintiff, Irene Manfra, on January 8th, 1938, was walking on or near the sidewalk, abutting premises known at 115 Straight avenue, Paterson, New Jersey, which premises defendant had acquired by sheriff's deed on July 8th, 1937. While so walking she fell over an iron strip or nosing elevated about three inches from the curb stone. As a result
of that fall, she sustained injuries and resultant damages for the recovery of which she brought this suit.
The theory upon which plaintiff sought to fasten liability on defendant was rested upon the familiar principle that defendant had bought into a subsisting and continuous nuisance created by one of its predecessors in title. Cf. Savarese v. Fleckenstein, 111 N.J.L. 574, 575; 168 A. 850; affirmed, 114 N.J.L. 275; 176 A. 322; Schwartz v. Howard Savings Institution, 117 N.J.L. 180, 183; 187 A. 171; Garvey v. Public Service, &c., Transport, 115 N.J.L. 280, 284; 179 A. 33.
Defendant, on the other hand, resisted liability substantially on the following grounds: (1) its predecessor in title had not in repairing the sidewalk (in 1936) created a new element of danger (Cf. Taggart v. Bouldin, 111 N.J.L. 464; 168 A. 570; McHugh v. Hawthorne Building and Loan Association, 118 N.J.L. 78; 191 A. 548); (2) that defendant breached no duty which it owed to plaintiff; (3) that the accident was unavoidable; and (4) that the plaintiff was guilty of contributory negligence.
Plaintiff and defendant offered proofs in support of their respective theories. The trial judge in a full, fair and accurate charge, free from exception, submitted the case to the jury for its determination. The jury returned a verdict of $5,500 in favor of the plaintiff.
On the return of a rule to show cause, allowed by the trial judge, he held that if plaintiff consented to a reduction of the verdict to $3,500 the rule would be discharged; otherwise it would be made absolute both as to liability and damages. Plaintiff ...