On appeal from the former Passaic County Circuit Court.
For reversal: Chief Justice Vanderbilt and Justices Case, Heher, Oliphant, Wachenfeld, Burling, and Ackerson. For affirmance: None. The opinion of the court was delivered by Oliphant, J.
This is an appeal from a judgment of non-suit entered in the Passaic County Circuit Court in an action to recover for personal injuries sustained when the appellant slipped and fell upon an icy sidewalk in front of a factory building allegedly in the control and possession of the respondent. Possession and control were denied in the answer and no proof was offered at the trial with respect thereto. No point is made here of the failure of such proof below.
The complaint is prolix but the acts complained of appear to be that respondent improperly allowed the drains, leaders, sewers, etc., designed to carry off rain and melted snow from the roof, to become broken and in disrepair and to discharge waters on the sidewalk which congealed into ice and that the respondent thereby maintained a nuisance, public and private in character, and that these conditions were known to the respondent who was charged with notice thereof.
It is further alleged that it was the duty of the respondent to see that the sidewalk was at all times maintained in a safe and proper condition, and to see that any defective, dangerous and improper elements thereon were abated and at all times to see that any structural conditions existing in and about said premises were not maintained or assumed by the respondent whether constructed by the respondent or his predecessors in title. The answer was a general denial. We are not aware that any owner of property is burdened with so broad or sweeping a duty. We will confine ourselves to determining whether a cause of action was spelled out by the facts proven below.
The appellant's proof shows she slipped on the icy pavement as she alleged. The sidewalk ran from the curb to the building proper. Attached to the building at different points along its length of about a full block was a series of leaders which ran down the side thereof from the roof gutters, which apparently overhung the sidewalk, and connected with iron pipes which apparently connected with a sewer or other depository. The appellant testified that she worked for a tenant of the building and that for six months prior to the accident in question she had noticed water spraying out of a broken pipe at different
times and that during this period this leader was maintained in the same manner. An expert testified that there was a slit in the leader about seven inches long and a half inch wide up above the second floor and that the leader was a three inch galvanized pipe which had corroded and there were rust stains on it. He also stated that it ran from the roof to the hub of an iron sewer pipe which was about three and a half feet above the sidewalk.
The appellant testified that the sidewalk was quite clear up to the point where she fell, but after falling she saw the ice on the sidewalk and that there was ice on the sides of the leader and pipe.
The trial court, on the motion for a non-suit, held that an owner is only responsible when, for the protection of the public and not for his own exclusive benefit, he tries to carry water either across or under the sidewalk. He found nothing in the testimony to create the inference or conclusion that there was any attempt to carry the water out or under the sidewalk. He held that there was no legal liability under this theory and further held that if plaintiff had used reasonable care she would have seen the ice and that whatever happened was her fault.
The appellant argues that the case here presented is controlled by the decisions of the former Court of Errors and Appeals in Cavanagh v. Hoboken Land Improvement, 93 N.J.L. 163 (E. & A. 1919); Zwickl v. Broadway Theatre Co., 103 Id. 604 (E. & A. 1927) and Millar v. United Advertising Corp., 131 Id. 209 (E. & A. 1944). The rule of these cases is that where the abutting owner constructs a drainage system upon his building consisting of the usual gutters and down leaders, which are in turn connected with a drain under the sidewalk or pipe, for the purpose of preventing such accumulation of rain or snow from running across the sidewalk and freezing, it is to be implied therefrom that the system was designed for the protection of the public user, not solely for the protection and benefit of the owner's property. Thus it was made the test that while the owner is under no duty to construct such a system, once he assumed to do so, he is bound to maintain the system in such a condition that it will perform the function
for which it was in part intended, of protecting the users of the public sidewalk from the dangers of ice, until there is clear and convincing evidence that the ...