On appeal from the Passaic County Court of Common Pleas.
For the plaintiffs-appellants, J. Chester Massinger (Martin Kimmel, on the brief).
For the defendant-respondent, Harry L. Schoen.
Before Brogan, Chief Justice, and Justices Parker and Porter.
BROGAN, CHIEF JUSTICE. This is an appeal from a judgment of nonsuit ordered on plaintiff's opening statement to the jury by the Common Pleas Court of Passaic County on motion of the defendant, the Borough of Wanaque.
The question in the case is whether a municipality is liable for the affirmative negligence of workmen supplied by a federal agency known as the Works Progress Administration (W.P.A.), engaged in a work of public improvement in the municipality. These workmen were putting in a curb, along Mullen Avenue, a public street in the borough, at the instance of the municipality and in the course of the work excavated a trench which was left unguarded at night, with the result that the plaintiff, Mrs. Reardon, fell into the trench and was injured.
For such acts of affirmative negligence, amounting to a nuisance, a municipality under normal conditions is answerable and the doctrine of respondeat superior applies. Hart v. Freeholders of Union, 57 N.J.L. 90; Hammond v. County of Monmouth, 117 Id. 11, 14; 186 All. Rep. 452; Fisher v. Nutley, 120 N.J.L. 290, 292; 199 A. 40.
Unless, therefore, the fact that the work was being done for the borough as a W.P.A. project absolves the borough from liability, the opening by the plaintiffs' counsel stated a cause of action and the nonsuit was, consequently, erroneous.
This action was started against the Borough of Wanaque and one Paul Cofrancisco. The action against the latter was eliminated at the trial because he had been called for service in the army. The improvement was being made on Mullen Avenue, in the Borough of Wanaque, a public street under the control and supervision of the borough.
In the opening to the jury the following were the facts which counsel for plaintiffs stated he was ready to prove:
That on July 18th, 1938, a resolution was passed by the governing body of the municipality authorizing the curbing of Mullen Avenue, and on September 30th a resolution was adopted that application be filed with the W.P.A. for a "project" to cover the work; that subsequently a resolution was adopted that the engineers of the municipality be
instructed to include the curbing of Mullen Avenue "as a Borough project;" and that on January 11th, 1939, a further resolution was adopted which stated that the W.P.A. had approved the project, and thereupon it was approved "for operation" by the governing body. It was further stated that the work to be done under the project was started and carried on, with part of the material and part of the cost of construction to be paid for by the municipality, and the balance to be paid by the federal agency; that the borough paid twenty per cent. of the total cost of the work, and that in the application to the W.P.A. for the project it was stated by the governing body that "the sponsored project will be superintended by our R. Lowe, Borough Engineer." Counsel also stated to the jury that he intended to show that, to some extent at least, ...