Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
Plaintiff's negligence action against the City of Hoboken was dismissed at the close of his case for failure to introduce any evidence from which an inference of active wrongdoing could be drawn.
An undisclosed number of years ago, the city constructed a sewer system and has since maintained it. In connection therewith, over 20 years ago a manhole was cut in the public sidewalk on the west side of Clinton Street at the northwest corner of Third Street to permit entrance into the sewer at that point. The hole was closed by a removable metal cover which, when in place, was flush with the surrounding sidewalk. It was not locked but remained in position through its own weight. The cover rested on a metal ring which was built into the surrounding granite section of sidewalk and which extended inward one-half to three-quarters of an inch. In the morning of November 9, 1953 the plaintiff Charles Taverna, while walking along the public sidewalk, stepped on this manhole cover. As he did so, it "flipped" out of position, causing him to fall part way into the sewer or manhole and suffer injury.
One witness, who lived only a few houses away from the scene, testified that the manhole cover was "wobbly" -- "loose" and "shaky" before the accident. It was that way four years earlier when she moved into the neighborhood. She avoided walking on it because of her knowledge that it was "shaky."
The proof showed also that immediately after the accident the circular "lip" on which the cover rested was observed to be "beveled" (that is, sloping; not at right angles to the opening. Webster's New International Dictionary (2 d ed., unabridged)); the stone around it was worn and there was a crack in the stone leading from the "lip of the hole right clean across [the sidewalk] to the front part of the store."
A diagram in evidence indicates that the sewer opening is fairly close to the intersecting curb lines of Clinton and Third Streets.
A witness who was driving by saw the plaintiff being helped out of the sewer. After parking his car, he came back to the scene. On arrival, he put his foot "lightly" on the cover (which had been replaced) and it was "very shaky, very movable." Another person, who appeared before the plate was put back, noticed that "part of the side where the top of the iron case fits in" was cracked.
In answer to interrogatories, the city admitted that the maintenance and repair of the manhole and cover were in charge of the Department of Public Works under the supervision of Michael Murtha; that the sewer basins were cleaned "about" once a year and that the manhole and cover in question had been inspected by Murtha on January 9, 1953, at which time the sewer was cleaned.
Murtha's deposition was taken. He said that when the sewers are cleaned, if a cover is found to be loose "we take care of it" by putting "a little hallemite or cement" around it to tighten it up. That is part of his duty.
He further testified without objection that at about 1 P.M. on the day of the accident he came to the scene. He walked on the manhole cover and "it shifted a little bit." At his direction the workmen put some cement around the ring on which the cover is placed "to set it in there tight," so that it would hold securely in place. And it held securely in place after the cementing. He said also:
"Q. Would it be proper, after you knew of this condition that the manhole cover is insecure or loose, to leave it that way ...