On appeal from the Superior Court, Law Division, Bergen County.
For reversal -- 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 dismissal entered in the Bergen County Court, under Rule 3:41-2, on a motion at the close of the plaintiff-appellant's case. The appeal is before this court on our own motion for certification.
The action was to recover for personal injuries sustained when the plaintiff tripped over a wood and metal cover which enclosed and covered a brick-lined pit housing a water meter on defendant's property and owned by the Passaic Valley Water Commission, which is not a party to the suit. The complaint as amended consists of two counts; one based on negligence and the other based upon nuisance. The defendants are the owner and landlord, Acme Holding Company, and a tenant, Pyramid Piece Dye Works, Inc., the employer of the plaintiff.
The defendant, Acme, in the interrogatories which were admitted in evidence, admitted it was the owner and landlord of the premises and that the meter pit and cover were on the property when the same was purchased by it. The respondent, Pyramid, admitted it was a tenant in occupancy of the premises and further admitted Acme bought the property in June, 1941, that Pyramid moved to said premises November 21, 1941, and have occupied them since, under a lease, the said tenancy continuing to the present time by holdover tenancies. The lease in effect at the time of the accident commenced December 1, 1946.
There were two water meters for the premises; one of which was near Lewis Street on which the building faced, through which the water for the processing of materials was brought
into the building, and the other, the one in question, was located about 100 feet in from Lewis Street. This water meter was used in connection with the shop of the tenant Pyramid and with the boiler room of the landlord, Acme. The water bills for the water used at the premises were charged to the tenant, Pyramid, and water for fire purposes was charged to Acme, the owner and landlord. It was testified that the water for fire purposes was not water used for the sprinkler system but was the water supply to the boilers for steam purposes. The boilers were maintained and operated by four firemen employed by Acme, the landlord. No employees of Pyramid worked on the boilers. The steam from the boilers was used to heat the place and for the processing of the tenant's goods. There is testimony that these firemen employed by Acme went into the pit at times to turn the water on or off.
The Passaic Valley Water Commission installed this particular meter in 1922 in an open pit about 4 feet deep. It does not appear by whom or when the brick pit and cover were installed, but the proofs show that it was there when Acme took title and Pyramid went into possession in 1941. The plaintiff was injured as he walked in from Lewis Street to the employees entrance which was on the side of the main building facing on what appeared to be a street. There was some two inches of new snow on the ground over a base of earlier frozen snow which had packed down. The plaintiff testified he tripped over the wood and metal cover of the brick pit, his foot went under the cover and he fell across it sustaining the rather severe injuries for which he seeks recovery. This cover consisted of a metal top with a number of wooden cross-pieces attached underneath and which fit into the pit like a collar; the metal part was wider than the wooden part and overlapped and rested over the ledge or top of the brick walls of the pit. The metal top kept it from falling into the pit and the wooden part was supposed to keep the cover from sliding. But there is testimony in the case that it would move if it received a good kick or any force was applied to it. There is further testimony in the case that at times the brick ledge
was even with the dirt surrounding it but at other times it was not and that the plate had a slight curve in it so that at times one of its four corners would raise as much as an inch. This latter testimony relates to the day of the accident and to periods of time considerably previous thereto.
The complaint as originally drawn was on the theory that the defendants were under an obligation to maintain this water meter in a condition so that it was flush with the sidewalk and to inspect and keep the same in repair at all times. The theory of this complaint was nuisance. The amended complaint, which is not before us in the ...