On appeal from the Essex County Circuit Court.
For the appellant Magenheim, Edward R. McGlynn.
For the appellant Drill, R. Robinson Chance.
For the respondents, William H. D. Cox.
Before Brogan, Chief Justice, and Justice Parker.
The opinion of the court was delivered by
PARKER, J. These are actions for damages sustained by pedestrians on a public sidewalk, by reason of the fall of the cornice of a three story frame building situate on the easterly corner of Monroe and Ferry Streets in Newark. The building
had been badly damaged by a fire. In that condition it was purchased by defendant Magenheim, who contracted with defendant Drill for restoration and repairs. While the work was in progress, the front sidewalk remained open for use by pedestrians, though no "sidewalk shed" which is often provided in such cases, had been provided. The plaintiffs were passing along the sidewalk, when the front cornice, or part of it, suddenly fell, injuring them severely. The complaints charge negligence, based substantially upon failure to observe the dangerous condition of the cornice, and failure to take suitable measures for the protection of sidewalk users, by providing a proper "sidewalk shed," or similar structure, to intercept falling fragments of the damaged building. The trial court denied motions to nonsuit, and motions to direct verdicts against the plaintiffs, and submitted the cases to the jury, who found verdicts for the respective plaintiffs, and the judgments thereon are now before us. In both cases error is assigned on the refusals to nonsuit and to direct a verdict for defendant. In the appeals of Drill, there are twenty-one additional grounds, which will be considered later on.
First, the submission of the cases to the jury. As regards the contractor Drill, who was in possession and control at the time of the accident, we consider that the question of his negligence was clearly for the jury both when the plaintiff rested and at the conclusion of the evidence. As to the owner Magenheim, while the case is not so clear, we think that on the evidence he could be held liable on the theory of maintaining a nuisance if, as the jury could find, the cornice was in a dangerous condition and liable to fall at any time. See State v. Ireland, 126 N.J.L. 444. Moreover, the liability for a nuisance continues until it is abated, notwithstanding that a contractor has been employed to abate it. It follows that there was no error in submitting the case to the jury as regards either defendant; and this leads to an affirmance on the appeal of Magenheim, who submitted no evidence, and whose only claim at this time is that the court erred in refusing to nonsuit or direct a verdict in his favor.
As to defendant Drill: he was the general contractor for the work, and as such owed a duty of care to the public using
the sidewalk. On his behalf, some twenty-three grounds of appeal are presented and argued. The first two, refusal to nonsuit and refusal to direct a verdict, have already been considered. Grounds 3 to 12 inclusive relate to the refusal of the trial judge to ...