Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
This is an action to recover damages for the death of plaintiff's intestate, her husband, allegedly caused by the negligent misfeasance and creation or maintenance of a nuisance by the defendant municipalities at the easterly or bulkheaded end of Brigantine Avenue in the City of Brigantine, Atlantic County. The case sought to be projected by the plaintiff was that the decedent was driving his car, alone, on the night of September 24-25, 1954, on Brigantine Avenue, northeasterly of its intersection with 14th Street, and that there was no observable indication that the street dead-ended at a bulkhead erected in 1938 by the county, being some 150 feet beyond 14th Street and two to three feet above the street level, because the bulkhead was hidden from view by a large number of piles of mixed dirt, gravel and broken black-top piled there previously by the county; that the city had control and responsibility for the maintenance of the street, knew of the obstructing piles and failed to place warning signs or lights for the protection of travellers; and that the decedent's car went through the piles and over the bulkhead because of the allegedly dangerous condition thus created and landed on the beach, at a level eight feet below the top of the bulkhead, causing him to sustain injuries from which he succumbed several days later.
At the trial in the Law Division there was an involuntary dismissal at the end of the plaintiff's case: in favor of the
defendant county because there was no evidence that the dumping of the piles or mounds was authorized by the county or that the county participated in it; in favor of the defendant city because it had nothing to do with the placing of the dirt and because its default, if any could be imputed to it on the basis of the knowledge by its agents of the condition, amounted to no more than nonfeasance in the discharge of a public duty, for which a municipality is not liable. From the consequent judgment plaintiff appeals.
The basic facts in the case are these: Brigantine Avenue begins as a paved county highway at the southerly end of Brigantine and runs two and one half miles along the oceanfront under county control until it reaches 14th Street. Thence it continues as a gravel road 150 feet until it comes upon the bulkhead already mentioned. The last street light is at the intersection of Brigantine Avenue and 14th Street. The gravel road is under the control of the City of Brigantine. The bulkhead was built by the county as a device to prevent erosion of the land by the ocean. Prior to its construction the land was eroded to a point about 50 feet southwesterly, or landward of the present location of the bulkhead. At that time there was only a one-car lane northeast of 14th Street and over a period of years thereafter the street was widened to its present width of some 80 feet as a result of filling with waste materials by both the county and the city from time to time. The process of widening had been completed only recently but the road had not been in good condition for any extended period of time, particularly near the bulkhead itself, as storms created periodic washouts, leaving holes or depressions. Whenever this happened the county or the city road departments, sometimes both, would, sooner or later, dump fill and either grade or level it.
One such washout created a hole or depression near the bulkhead in the spring of 1954. The Brigantine city clerk phoned the county engineer and asked for county assistance in filling it. The testimony of the engineer implied that there previously had been like conversations, the one in question being described as "the last occasion." He said he told
the clerk he did not know if the county could do it and suggested it be done by the city. In any event, a county curb construction project on the portion of Brigantine Avenue controlled by the county got under way the early or middle part of September 1954, and quantities of dirt, gravel and broken black-top were daily dumped, by direction of the county assistant road supervisor, in the low area at the end of Brigantine Avenue, and, according to that official, about 25 or 30 feet from the bulkhead. He volunteered in his deposition that:
"We are not supposed to do it. We just done it because it was a good place to get rid of the stuff, and it was excess stuff * * *."
On cross-examination he said:
"Q. But you had no instructions or authority from the county to put it there? A. No sir, I put it there because it was dangerous and that is a bad spot there and there was no sign up there."
He also said "we had no other place" to dump. After the dumping of the piles there was some grading of the material, but on September 25, the morning of the accident, there remained what appeared to a police officer, O'Connor, to be some 25 to 50 mounds, closely grouped so as to appear as hills and valleys, three to four feet high, extending over a width of about 50 feet and lying in a zone from about 20 feet to about 40 feet from the bulkhead.
O'Connor testified that he was notified by radio at 6:30 A.M. on September 25, 1954 that there was a car on the beach. He found the car facing the ocean, with its front bumper about 29 feet from the bulkhead. Its front doors could not be opened. Decedent was unconscious and there was an odor of alcohol about him. O'Connor found a "set of tire tracks" leading to one of the mounds of dirt on Brigantine Avenue, about 42 feet from the bulkhead. The mound was about seven feet wide. It was "all broken up" and "the top of it was taken off." In line with the tracks, the mound, and the position of the car on the beach O'Connor saw what he described as a "tire smudge mark" on top of
the bulkhead. He saw no tire marks on the ground between the mound and the bulkhead. A physics professor testified for plaintiff that an object of any weight projected through the air from the mound at the angle of elevation indicated by the width and height of the mound would, in order to reach the point on the beach where the car was found, be taking off from the mound at 29.4 miles per hour. It is obvious, however, that this affords no evidence as to how much faster the decedent's car may have been ...