McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Wm. J. Brennan, J.A.D.
Plaintiff was injured in the side yard of his Brooklawn, Camden County, home when preparing on a July day in 1946 to water his lawn and his right heel struck a metal shield, called a Bierce protector, on a guy wire anchored on his lot within a foot from the side of his house.
His back was to the house as he stood on a concrete walk running along its side; he stooped over to pick up a garden hose and his foot raised backward toward the house away from the walk and came into contact "with the edge of that shield over the guy wire."
The shield ran up the guy wire a distance of 7 feet from its anchor point. It resembled and was about the width of a half section of rain pipe, with its rounded surface toward the concrete walk and its two edges facing the house. The guy wire was one of two such wires supporting a pole which bore equipment of both defendants and was located within plaintiff's fence but just off the rear of his lot; the fence encroached on an alleyway, not part of plaintiff's property. The guy wire and Bierce cover were installed around 1930 by The Delaware and Atlantic Telegraph and Telephone Company, predecessor of defendant Telephone Company. The other guy wire was installed in 1919 by Public Service Electric Company, predecessor of defendant Electric and Gas Company; it paralleled the Telephone Company guy wire and was fastened near the ground in the side foundation of
plaintiff's house within a foot of the anchor point of the Telephone Company guy wire.
Plaintiff sued both defendants in the Superior Court, Law Division, Camden County, alleging their joint and several liability for his injury, contending that the installation was a trespass, that the guy wires and Bierce protector had been negligently located, and that the guy wires and protector had been negligently maintained. At the close of plaintiff's case, the suit was dismissed on defendants' motions as to the allegations of trespass and negligent maintenance, but motions for dismissal and for judgment at the close of the case were denied as to the allegations of negligent location and there was submitted to the jury "the question of whether or not the defendant companies or either of them, in the exercise of its right to go upon the plaintiff's land, so constructed its equipment that a reasonably prudent person would have foreseen an injury resulting to the land owner in the legitimate and reasonable use of the property and its appurtenances." Plaintiff had a jury verdict against both defendants and they appeal from the judgment entered thereon; plaintiff cross appeals that if the judgment is reversed his complaint as to trespass and negligent maintenance was improperly dismissed.
Plaintiff's home was one of 488 houses built as part of a housing project developed after the first World War by Noreg Realty Company. That company contracted with Public Service Electric Company by agreement dated February 19, 1919, for the servicing of the houses with electric power, and agreed to "afford full entry to Electric upon the portions of land designed for streets and alleys in said development for the erection of poles, and afford Electric full opportunity and privilege to erect and maintain the same and electric service thereon;" Electric, on its part, agreed to "erect all poles and run all wires, * * *" required to do the work and "at its own cost and expense, to maintain, keep in repair, replace and restore any and all poles, wires * * * installed under this agreement." The agreement was not recorded, but when
Noreg Realty Company conveyed the entire tract to the United States of America, the deed, recorded July 10, 1923, included a provision "together with the benefits granted and subject to the terms, covenants and conditions imposed by the following agreements, viz., * * * (c) Agreement made the 19th day of February, 1919, between said Noreg Realty Company and Public Service Electric Company * * *."
The pole was erected by Public Service Electric Company April 29, 1919, and a guy wire was placed thereon by that company and fastened to the house at that time.
Noreg Realty Company made an agreement dated July 20, 1920, with Delaware and Atlantic Telegraph and Telephone Company to obtain telephone service for the houses. This agreement was recorded and provided for the use by the Telephone Company of the poles previously erected by the Electric Company and granted the Telephone Company rights "to construct additional guys and anchors for the support of some of the said poles," as shown on a plan attached to and recorded with the agreement; arrow-shaped symbols on the plan showed the location of the several poles on the tract upon which the Telephone Company was to place its equipment, the pole here being one such, and as to which, and to two other poles, there was also a legend "Tel. Co. anchor guys to be located in front of and in line with present Elec Co. guys." Plaintiff argues that the symbol identified with the legend points to the house next door and not to his house. The fact is there was no guy wire of Public Service Electric Company from the pole here involved to the house next door; the only guy wire on the pole was that fastened in 1919 to plaintiff's house. In these circumstances the symbol and legend are plainly to be construed as referring to the guy wire on ...