On appeal from the Passaic County Court of Common Pleas.
For the plaintiffs-appellees, J. Chester Massinger (Martin Kimmel, on the brief).
For the defendant-appellant, Harry L. Schoen (Heyman Zimel, of counsel).
Before Brogan, Chief Justice, and Justices Donges and Perskie.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The plaintiffs had judgment, Augusta M. Reardon for personal injuries which she suffered, and her husband, Edward, for losses consequent. The defendant, a municipal corporation, appealed. We have previously had occasion to consider the plaintiffs' claim in this matter (Reardon et al. v. The Borough of Wanaque, &c., 129 N.J.L. 18) in which a judgment of nonsuit on counsel's opening was reversed. The facts have been stated in some detail in our opinion in that case.
In the present record it appears that the plaintiff Mrs. Reardon, accompanied by her son and other relatives, called on a friend who lived on Mullen Avenue in the Borough of Wanaque; a public improvement was in progress on that street; it consisted of laying new curbs according to fixed grades. Apparently some excavating had been required. At any rate, there was an open ditch in the roadway in front of the house in which Mrs. Reardon's friend lived. Plaintiff came by automobile, driven by the son, and stopped a little beyond the friend's house which they entered by the rear door. When this plaintiff was about to return home at half past ten that evening, December 13th, 1939, leaving the house by the front door, she walked to the roadway to enter her son's car and fell into the open ditch or trench at the roadway, which was unguarded and unprotected by light or barrier, and suffered substantial personal injuries. The municipality appeals and asks us to reverse this judgment, stating its argument under three headings -- (1) that the trial court fell into error in refusing to grant a nonsuit at the close of the plaintiffs' case; (2) that the trial court erred in its charge to the jury, and (3) that the trial court erred in refusing to take the case from the jury on the theory of the plaintiff's assumption of risk.
Under the first heading it is argued that the borough cannot be held liable for injuries caused "by the negligence of the employees of a federal agency where the borough exercises no control over those employees * * *." There is no merit in this point. The street is a public highway "under the control, supervision and management, in so far as repairs,
maintenance and improvements are concerned" of the defendant. This was stipulated by the parties.
Municipalities, under our law, do not enjoy immunity from liability where injury is visited on an individual as a result of the municipality's active wrongdoing. On the contrary, where, as here, a nuisance results by reason of active negligence on the part of the municipality's agents, it is held answerable in damages to the individual for the harm done him. Hart v. Freeholders of Union, 57 N.J.L. 90; Hammond v. County of Monmouth, 117 Id. 11; Fisher v. Nutley, 120 Id. 290; Allas v. Rumson, 115 Id. 593.
But the appellant contends it is outside the pale of this rule inasmuch as the improvement was done by a federal agency (W.P.A.) which hired the employees for the work and over whom the governing body had no control. We are unable to agree with this contention. It appears in the case that the federal agency paid the labor cost and that the municipality paid, in whole or in part, for the material used in the undertaking and that supervision of the work from an engineering standpoint was entrusted to the firm of Lowe & Scanlon, engineers representing the borough.
In the stipulation between the parties there is this provision: "Project will be superintended by our R. Lowe, the Borough engineer." The doctrine of independent contractor is inapplicable in these facts and circumstances. In any event, under the proofs, it would seem that the defendant and the federal agency had engaged in a joint enterprise. In this ...