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Schwartau v. Miesmer

Decided: June 3, 1958.

HANS SCHWARTAU, PLAINTIFF-RESPONDENT,
v.
CHARLES MIESMER AND EVELYN MIESMER, JOINTLY AND SEVERALLY, DEFENDANTS, AND BOROUGH OF CLOSTER, A MUNICIPAL CORPORATION IN THE COUNTY OF BERGEN, DEFENDANT-APPELLANT



Price, Haneman and Schettino. The opinion of the court was delivered by Price, S.j.a.d.

Price

Appellant seeks the reversal of a judgment entered on the verdict of a jury in favor of plaintiff-respondent against the Borough of Closter in the sum of $25,000. The jury returned a verdict of no cause for action in favor of defendants Miesmer. They are not parties to this appeal. The trial court denied appellant's motion for a new trial which motion was based on appellant's contention that the verdict was against the weight of the evidence.

The verdict returned in favor of plaintiff against defendant Borough of Closter was the result of personal injuries sustained by plaintiff when he fell into a catch basin of a storm sewer on July 10, 1956 between 9 P.M. and 10 P.M.

The catch basin was located near the southwest corner of the intersection of Columbus and Eckerson Avenues in the Borough of Closter.

The pretrial order contained the following stipulation:

"The parties agree to stipulate the following facts:

The defts. Chas. & Evelyn Meismer [Miesmer] are the owners of the property located on the southwest corner of Columbus Ave, and Eckerson Ave. in Closter, NJ, where they reside. They acquired title to sd. prop. on July 7/50, and have owned the prop. continuously ever since, and have resided there continuously since said date. The Boro of Closter, by written agreement dated Sept. 15/30 with James P. Burns, constructed a storm water sewer in Columbus Ave., and constructed a catch basin in Eckerson Ave. at the southwest corner of the intersection about 12 ft. from the westerly curb of Columbus Ave. * * *

There is a concrete paving and a concrete curb at the southwest corner of Columbus & Eckerson Aves., and the concrete curbing extended to the catch basin. On the date afsd. there was a metal grating over the catch basin in Eckerson Ave. up to the southerly curb line level with the pavement of the street. On the day of the acc. grass covered the surface of the ground inside the curb line on Eckerson Ave."

Plaintiff's home was located at the northeasterly corner of the aforesaid intersection diagonally across from the Miesmer residence. On the evening in question plaintiff had been a social guest at the home of defendants Miesmer.

The quantum of the jury's verdict is not challenged on appeal. The basic questions involved are: (a) whether the trial court erred in denying the motion of the defendant borough for judgment in its favor and in so doing failed to apply the statutory and decisional law of the State pertaining to tort liability of a municipality engaged in a non-proprietary undertaking; (b) whether certain rulings by the court during the trial were erroneous; (c) whether there was an abuse of discretion by the trial court in denying a motion for a new trial based upon the ground that the verdict was contrary to the weight of the evidence.

The catch basin in question had been damaged in 1951 by a contractor Paillex employed by defendants Miesmer. The damage occurred while the contractor was operating

a bulldozer at the time of the construction of the Miesmer home on the site in question. The contractor testified that he covered the damaged portion of the catch basin with two 3 x 6 boards. Miesmer and his wife testified that they reported the damage to the police department and Miesmer testified that he placed planks over the hole.

A police blotter entry, signed by the police captain, John Barnett, was received in evidence at the trial. It stated:

"May 9, 1951

4:00 PM

12:00 Mid

4:10 PM Investigated Mr. Miesmer report of a Bull Dozer doing some damage, found the cover of the catch basin broken and missing, W. Haring notified, see Chief Cole report."

Haring at that time was an employee of the Department of Public Works in the defendant borough and has since become its superintendent. At the trial he denied that he was ever notified of such damage or that he knew of any repairs that were made to this particular catch basin until after July 10, 1956, the date of plaintiff's accident. The police captain of the borough testified at the trial confirming the record of the report to Haring.

Mrs. Miesmer testified that within a period of several months following the initial complaints to the police department by her and her husband in 1951 with reference to the damaged condition of the catch basin, she saw a borough truck parked at the location of the catch basin and saw several men working there, whom she recognized as borough employees. Both Mr. and Mrs. Miesmer stated that thereafter they observed a new wooden cover fitted over the catch basin opening, which cover was not the planking which had previously been used. Testimony of an expert witness on behalf of plaintiff established that use of a wooden cover reflected improper repair work because wood is not strong enough and is subject to the action of the elements. He testified that the cover should have been of cast iron. His testimony is unchallenged.

We conclude that the fitted wooden cover with the passage of time, became overspread with dirt, grass grew

thereon and the wood rotted; that the latent condition of danger progressed until the night of the accident, resulting in the injuries to plaintiff.

It was established that the municipality repaired the catch basin after the accident. Such testimony was properly received with the limitation that it was admitted solely with reference ...


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