Decided: January 17, 1947.
PAULINE MARIE FELTER AND CHARLES H. FELTER, PLAINTIFFS-RESPONDENTS,
HASBROUCK HEIGHTS BUILDING LOAN AND SAVINGS ASSOCIATION AND HASBROUCK HEIGHTS BUILDING LOAN AND SAVINGS ASSOCIATION LIQUIDATING CORPORATION, DEFENDANTS-APPELLANTS
On appeal from the Bergen County Circuit Court.
For the appellants, William V. Breslin.
For the respondents, John E. Selser.
[135 NJL Page 130]
The opinion of the court was delivered by
COLIE, J. This is the appeal of Hasbrouck Heights Building Loan and Savings Association and Hasbrouck Heights Building Loan and Savings Association Liquidating Corporation from a judgment in favor of the plaintiffs in a suit tried in the Circuit Court. The complaint was grounded on alleged negligence in permitting a certain gutter or leader to become and remain stopped up and in a state of disrepair and as a result thereof, water flowed over the sidewalk, froze and the female plaintiff slipped and fell as a result thereof. It is settled law, needing no citation of authority, that the burden is upon the plaintiff to establish facts from which negligence may be inferred. The record in this case discloses no evidence of disrepair. The undisputed testimony is to the contrary. The complaint was not grounded on the theory of faulty construction, nor was there any proof thereof. The evidence was that the leader was clogged up with ice and there was no evidence as to how long that condition had existed. In this state of the evidence, it was error for the trial court to submit the question of negligence to the jury.
To sustain the judgment under appeal, the respondents rely upon Cavanagh v. Hoboken Land, & c ., Co., 93 N.J.L. 163; Zwickl v. Broadway Theatre Co., 103 Id. 604; Millar v. United Advertising Corp., 131 Id. 209. None of these authorities is pertinent as in each one there is present an element of negligence or disrepair which is absent in the case under consideration.
The judgment under review is reversed, with costs.
For affirmance -- None.
For reversal -- THE CHANCELLOR, CHIEF JUSTICE, PARKER, BODINE, DONGES, HEHER, PERSKIE, COLIE, WACHENFELD, EASTWOOD, WELLS, RAFFERTY, DILL, FREUND, McGEEHAN, McLEAN, JJ. 16.