On appeal from the Supreme Court, Bergen Circuit.
For the appellant, Francis G. Schmidt, Jr. (John E. Selser, of counsel).
For the respondents, Eugene F. Hoffman (John J. Breslin, of counsel).
The opinion of the court was delivered by
PERSKIE, J. This is a sled coasting case. The question for decision, broadly stated, is whether the judgment in review, based upon a jury verdict in favor of each plaintiff and against the defendant municipality, is tainted with reversible error. The answer to the stated question depends, in turn, upon the answer to the more specific question of whether the denial of defendant's motions for nonsuit and for a directed verdict, each bottomed upon the basic ground that the evidence failed to establish the actionable wrongdoing alleged, was error.
On the night of the accident (November 26th, 1938, about 10:00 P.M.), Adrian R. Offringa, owner and operator of a "very large racing sled," was coasting in an easterly direction on Washington Avenue, in the Borough of Westwood, New Jersey. At that time Gladys M. Dickens (now McIntyre) and Gertrude A. Poz were on the sled with him. As they had by-passed, without striking, a barrier located in their lane of traffic, at the intersection of Washington and Hillside Avenues, a collision occurred between the sled and an oncoming automobile, privately owned and operated by one not affiliated with the borough, and not a party to this suit. As a result of this collision, Adrian was instantly killed, and Mrs. McIntyre was severely injured.
The plaintiffs joined in one suit against the borough and its councilman, Carl Margraff, whose official capacity is designated as the "Commissioner of Roads and Parks." A voluntary nonsuit was, however, taken as to Margraff.
The theory upon which plaintiffs sought to fasten liability upon the borough was that it was guilty of active wrongdoing, of having created a nuisance, in that it caused the "barrier" to be placed in such a "position" that the "easterly" traffic on Washington Avenue was forced onto the same lane with the "westerly" traffic thereon, thus it was claimed that the barrier was the "proximate cause" of the accident, and that the question of whether the coasters voluntarily "assumed the risk" was, under the circumstances, one for the jury to determine.
We turn to the attendant circumstances of the accident.
Washington Avenue runs east and west. So far as is here pertinent, its highest point, referred to as the "hill," is its starting point. That point is located in the Township of Washington. The course or trip of sled coasters thereon began at the top of the hill and continued in the easterly lane of traffic on Washington Avenue for a distance of approximately 873 feet. This avenue is intersected, in the borough, by Hillside Avenue, 600 feet from the top of the hill, and by Lafayette Avenue, approximately 873 feet from its stated beginning. This avenue has been used by sled coasters for about eight or ten years. When so used the borough caused a barrier to be placed at or near the intersection of Washington and Hillside Avenues to guard against the dangers of "vehicular traffic" on the westerly lane of Washington Avenue.
Pursuant to complaints made of the existing dangers to sledders on Washington Avenue, Carl Margraff, in the early afternoon of November 26th, 1938, directed the superintendent of roads of the borough to take care of the existing situation at Washington and Hillside Avenues. The manner in which that direction was executed forms the basis of plaintiff's theory of the borough's liability. The proofs in support thereof come from witnesses for the plaintiffs. The only proofs offered for the borough were that it did not formally designate Washington Avenue as a "play street," or as a "sleigh riding hill," and that it did not own a barrier with the words "Play Street Do Not Enter," or words to like effect. It shall serve no purpose, in our view, to detail the proofs. It should suffice to state, that it shows a wooden barrier was placed at the northerly side of Washington Avenue where it is intersected by Hillside Avenue. This barrier was built of 2 X 6's, 12 to 14 feet long, standing approximately three feet from the ground, with horses inserted in slots at each end. The horse supports as well as the main plank across bore black and white stripes (Cf. R.S. 39:4-191). The proofs show ...