devices which had for their purpose the control and the facilitation of traffic in the street rather than the lighting of the street.
In any event, the city passed its ordinance for the installation of the structures in question two years before even such authority was legislated. Although there was some testimony that the bases were actually installed about 1927 (fifteen years prior to the date of trial) the Ordinance 454 specifically mentions that the installations had at the time of its passage in December, 1927, existed for a period of six years of their estimated life of twenty years, and so they actually came into being before the legislation in question found its way to the statute books. When confronted with this situation the city ascribed its authority to construct the obstructing bases to the Municipal Home Rule Act of 1917, N.J.S.A. 40:56-1
wherein power was given to municipalities to undertake the installation of "white ways" and local improvements generally. However, there is nothing in this statute beyond the authority given to municipalities to light such of their streets as they chose with brilliant illumination. The statute does not give rise to any inference that it authorizes municipalities to obstruct the traveled portions of highways in order that such lighting systems may be installed therein.
Therefore, I am constrained to the conclusion that this case differs from the decisions reached in the cases of Lorentz v. Public Service R. Co. and Delaware, L. & W.R. Co. v. Chiara, wherein there were grants by the legislature indicating authority vested in the municipality to obstruct the street or highway for a definite purpose followed by action upon the part of the municipality specifically providing by ordinance the manner in which the legislatively sanctioned obstruction could be installed.
The principles of law which govern the tort liability of a municipal corporation have had a large volume of interpretation as indicated by the numerous decisions rendered and commented upon by the New Jersey courts, but the application of principles to factual situations is often difficult. In Hammond v. Monmouth County, 117 N.J.L. 11, 186 A. 452, 453, the New Jersey Supreme Court, speaking through Justice Perskie, said: "In reason and logic, it is difficult to understand why there should be any distinction between passive and active wrongdoing, for, in either event, resultant consequences to the injured party are, of course, the same. Thus many legal authors contend with force and conviction that there appears to be no justifiable reason why a municipality should be any the less or more culpable for the negligent doing of an act than for the negligent failure to do the act. * * *"
The subject, however, was given modern treatment by the Court of Errors and Appeals of New Jersey, speaking through Justice Heher, in the case of Allas v. Borough of Rumson, 115 N.J.L. 593, 181 A. 175, 176, 102 A.L.R. 648.The defendant, a New Jersey municipality, in building its borough hall had connected it with the public road by an inclined passageway or ramp used by those having business to transact in the building. The ramp was wholly under the control of the borough and was without guard rails or barriers to protect from injury persons using it in a reasonable manner. The plaintiff in the case was nonsuited by the trial court.After an exhaustive consideration of the cases in New Jersey and elsewhere, the appellate court concluded that 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 everpresent menace to the personal safety of the users of the premises." This it considered constituted a case of misfeasance or active wrongdoing attributable to the municipal corporation as distinguished from nonfeasance or mere negligence, stating: "There is an obvious distinction between keeping a highway free from nuisances and affirmatively creating one. In the one case it is mere neglect of a public duty for which there is no action for a private injury; in the other there is positive misfeasance. As was said in Hart v. [Board of Chosen] Freeholders of Union [County], supra [57 N.J.L. 90, 29 A. 490], 'there is no reason arising out of public policy why municipal corporations should be shielded from liability when a private injury is inflicted by their wrongful acts, as distinguished from mere negligence.'"
In our case there was testimony to show that the city had installed obstructions in the highway in a manner not in accord with professional standards of safety. The City of Asbury Park offered no testimony to refute this but relied upon the theory that it had legislative sanction to obstruct the highway in accordance with its judgment. I cannot agree that the city was vested with such authority and a jury has found that the condition that prevailed constituted a nuisance for which the city should respond to the plaintiff in damages. In such aspect the reasoning of the court in Allas v. Borough of Rumson, supra, appears to be particularly applicable and the motion of the defendant, the City of Asbury Park, to set aside the verdict and the judgment entered against it and to have judgment entered in accordance with its motion for a directed verdict in its favor made at the trial of the case or, in the alternative, for a new trial, will be denied.