On appeal from the Superior Court, Law Division.
For affirmance as to City of Passaic -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal as to Union Bldg. & Const. Co. -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. The opinion of the court was delivered by Wachenfeld, J.
[3 NJ Page 445] Appellant's eleven-year-old son was fatally injured while playing in a public playground in the
City of Passaic. The City had entered into a contract with the respondent Union Building and Construction Co. for the installation of a storm sewer crossing the playground. About a week prior to the accident the construction company had placed on the playground fourteen concrete pipes each four feet long, five feet in diameter and weighing 5,180 pounds. The pipes were not tied or secured and no watchman was placed over them.
During the week children in the playground had been playing with the pipes and rolling them around upon the ground. On the afternoon of the accident about eight boys between the ages of nine and twelve were rolling the pipes. The decedent fell between two pipes and sustained the fatal injuries. His father brought this action as administrator ad prosequendum against the two respondents and the Passaic Board of Education.
At the conclusion of the hearing, the trial court directed a verdict for all three defendants. It appeared from the proof adduced at the trial that the Board of Education did not own or control the land on which the pipes were placed and was not a party to the contract for the building of the storm sewer. Verdict was directed for the City on the ground that the construction company was an independent contractor whose negligence, if any, could not be imputed to the municipality. The court directed a verdict for the construction company on the ground that the pipes were not inherently dangerous and no peril would have been created if the children had not caused them to roll. The judgments in favor of the City and the construction company were appealed to the Appellate Division and the case was certified here on our own motion. Appeal from the judgment in favor of the Board of Education has been voluntarily discontinued.
The record shows the Union Building and Construction Co. was an independent contractor and its employees engaged in building the storm sewer were not under the control or supervision of the City except in the broadest and most general sense. Where the work to be done is not per se a nuisance and injury results from the negligence of an independent
contractor or his servants in the execution of it, the contractor alone is liable unless the owner is in default in employing an unskillful or improper person as the contractor. Sarno v. Gulf Refining Co., 99 N.J.L. 340 (Sup. Ct. 1924); affirmed, 102 N.J.L. 223 (E. & A. 1925); Healy v. Sayre, 113 N.J.L. 308 (E. & A. 1934). The appellant argues that the method of construction of the sewer resulted in the creation and maintenance of a nuisance but there is nothing in the record to support this contention, nor is it suggested the contractor lacked the requisite skill or qualifications for the work undertaken.
The verdict in favor of the respondent City of Passaic was proper. We come to this conclusion independently of the immunity we think is granted to the municipality under R.S. 40:9-2 which provides:
"No municipality or county shall be liable for injury to the person from the use of any public grounds, buildings or structures, any law to the contrary notwithstanding."
See Falcone v. Bd. of Education, Newark, 17 N.J. Misc. 75 (Ct. Com. Pleas 1939).
The trial court predicated its direction of a verdict in favor of the construction company entirely upon the case of Friedman v. Snare & Triest Co., 71 N.J.L. 605 (E. & A. 1905). There, however, the decision rested upon certain facts materially at variance with the facts in this case. The court found the girders which injured the plaintiff's child were stored on private property subject to a public easement for use as a sidewalk. The evidence showed the child was injured not while exercising the right of the easement for passage but in the course of playing about or resting upon the piled girders. This, the ...