Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
[34 NJSuper Page 597] The plaintiff, Mary Longi, a pedestrian on Raymond Boulevard, in the City of Newark, tripped and fell over a raised concrete slab in the sidewalk abutting the Raymond-Commerce Building, sustaining injuries. This suit was brought by her and her husband, Peter Longi, to recover damages from the City of Newark as owner of the land and from the Raymond-Commerce Corporation as lessee. At the conclusion of the plaintiffs' case the court on motion of the lessee, entered judgment in its favor and against the plaintiffs on the ground that there was no proof that it could be held responsible for or charged with the condition which
caused the accident. The plaintiffs' case against the city was submitted to the jury, which rendered a verdict of $5,000 in favor of Mary Longi, and of $2,935 in favor of Peter Longi, which latter was by consent reduced to $1,935.
The city had filed a cross-claim against the lessee, alleging that under the terms of the lease it agreed to make repairs to the sidewalk, and to indemnify and hold the municipality harmless from claims arising from accidents thereon. On motion of the lessee, the court entered judgment in its favor and against the city on the ground that the injury resulted from an act of the city, not encompassed by the lease provisions.
There are two appeals before us: The city appeals from the judgment entered for the plaintiffs and from the dismissal of its cross-claim against the lessee. The plaintiffs cross-appeal from the dismissal of their cause of action against the lessee.
The city is the owner of a plot of land extending from Commerce Street to Raymond Boulevard. On December 31, 1928 it entered into a lease for a term of 50 years with Abraham E. Lefcourt, under the terms of which a 20-story office building was to be, and later was, erected on the premises. On October 7, 1931 he assigned the lease to the defendant, Raymond-Commerce Corporation, which is still in possession and control of the premises. The lease obligates the tenant to make all repairs to the sidewalks adjacent to the premises, and to indemnify and hold harmless the municipality from any and all claims arising out of the lessee's conduct and management of the premises and adjacent sidewalks. In 1932, subsequent to the execution and assignment of the lease, the municipality, in connection with the construction of a subway under Raymond Boulevard, tore up the sidewalk along Raymond Boulevard. Upon completion of the project, a new sidewalk was laid by the city.
On September 27, 1951 Mary Longi tripped and fell over the raised edge of a concrete slab in the sidewalk. At the trial, the plaintiffs adduced testimony that the new sidewalk had been so improperly constructed that one section
became depressed, causing a difference in elevation which constituted a "tripping hazard" and public nuisance. The municipality offered testimony that the sidewalk had been laid according to accepted standards, but its own engineers admitted that no provision had been made by the use of reinforced concrete or otherwise to take care of the effect upon the sidewalk of natural settling and vibration from the subway.
The appeal from the judgment in favor of the plaintiffs may be readily disposed of. The claim of the plaintiffs was based on active wrongdoing or creation of a nuisance. The obstruction or dangerous condition of a public highway constitutes a nuisance, and the liability of a municipality for the creation thereof by its own positive misfeasance is firmly settled. Milstrey v. Hackensack , 6 N.J. 400 (1951). For a collation of recent cases and annotation on the specific subject of sidewalks and depressions therein, see Parker v. Denver , 128 Colo. 355, 262 P. 2 d 553 (Sup. Ct. 1953); 37 A.L.R. 2 d 1177.
The fact that under the lease the lessee was obligated to repair the sidewalk did not relieve the municipality as owner from discharging its duty to lawful users of the highway to refrain from creating a nuisance or from active wrongdoing. Gainfort v. 229 Raritan Avenue Corp. , 127 N.J.L. 409 (Sup. Ct. 1941). In the instant case, the municipality having removed and relaid the sidewalk, a question of fact was presented, and there was no error in the submission of the case to the jury. Further, in view of the injury, the verdicts were not so excessive as to warrant our interference therewith.
The municipality seeks to minimize the weight of the expert testimony given by Mr. Sheffield for the plaintiffs by pointing out that the answer to the hypothetical question asked him had to be based on the testimony of Mr. Whippen, the city engineer. At the trial the city's attorney first objected to the question, but after examining Sheffield concerning his knowledge of ...