Price, Goldmann and Gaulkin. The opinion of the court was delivered by Price, S.j.a.d.
By this appeal plaintiffs, in an action charging negligence and nuisance, seek to reverse a judgment of "no cause for action" entered on a jury verdict in the County Court. The judgment is challenged on the basis of alleged errors in the trial court's charge to the jury. Plaintiff Rose Mary Citro sought damages to compensate her for personal injuries alleged to have been received when she tripped and fell over a raised portion of a public sidewalk at 623 Hudson Street, Hoboken, in front of defendant's premises. The accident occurred on July 2, 1957 at about 11:30 A.M., on a clear and sunny day. Her husband Alfonso Citro sued per quod.
The record reveals that for eight years preceding the date of the accident plaintiffs had resided at 619 Hudson Street. Mrs. Citro had used the sidewalk in front of defendant's premises many times during the years of her residence at that address. She testified, however, that she did not see the raised portion of the sidewalk until after she had fallen. She further testified that she observed it while seated on a nearby low retaining wall to which she had been guided by a passer-by who assisted her immediately after she had fallen. Her husband, who was not present when the accident occurred, testified that he was familiar with the site of the accident, that there was a large crack in the pavement, and that one section of the sidewalk was "one and one-half inches to two inches" above the adjacent surface. He further testified that the condition he described had existed for several years. The passer-by, who helped plaintiff,
described the sidewalk area where plaintiff fell as quite uneven and that there "is a particular spot there where one section of the sidewalk juts upward in comparison with the surrounding area of sidewalk." An 11 year old nephew of Mrs. Citro who lived at 622 Hudson Street, testified that at the time of the happening of the accident he was standing near the top of the stairs on the porch of the house where he lived. He said: "Well, as I came out to the stoop, I looked across the street and my aunt was walking. As she got towards Stevens there was a piece of sidewalk raised and her foot went right onto that and she fell over frontwards." He further testified that he was familiar with the sidewalk where his aunt fell and said: "Well, I used to play near there and that was always like that for a long time."
Each side offered the testimony of an expert witness. Their respective opinions were in sharp conflict. On behalf of plaintiffs an expert, who had examined the sidewalk on May 20, 1958, was permitted over defendant's objection to testify with reference to an area covering approximately 30 feet of the sidewalk in front of defendant's premises in addition to testifying with reference to the specific place within the aforesaid area where Mrs. Citro alleged she had fallen. Asserting that he was familiar with standards of construction applicable to sidewalks built in 1943, the year defendant had constructed the sidewalk, the witness produced a sketch which was received in evidence over defendant's objection. This sketch covered the aforesaid area of 30 feet and on it the witness had delineated certain surface imperfections in the sidewalk such as cracks and holes which he stated he had observed. With reference to the area depicted on the sketch the expert expressed the opinion that there was an absence of expansion joints which condition had caused buckling, that the concrete had been mixed improperly and as a result the concrete had disintegrated leaving holes in the pavement, and that the sub-base of the sidewalk had been tamped inadequately causing the sidewalk to settle and crack. [55 NJSuper Page 299] On behalf of defendant an expert, who had examined the sidewalk in question on May 1, 1958, described it as a concrete sidewalk extending from a concrete curb "bordering a planting area in front of the building nine feet to the street curbing * * * divided into two rows of slabs by a longitudinal expansion joint in about the center of the sidewalk." He characterized the walk as "a well-laid sidewalk"; that there were a few cracks and elevations in it and some evidence of disintegration. Certain trees were planted along the curb. The witness described in detail the specific area where Mrs. Citro testified that she had fallen and with reference to which certain photographs had been received in evidence on which she had designated with a cross the place where she had tripped. The witness stated that in that area there was a tree hole 46 inches wide extending from the curb toward the center of the sidewalk and a tree growing there; that some of the slabs in the vicinity of the tree had been raised by the growth of the tree roots; that "except in the area of the tree the sidewalk was in good condition"; that the slab where plaintiff asserted she fell was "right opposite the tree hole" and about three feet from the trunk of the tree; that the sidewalk slab had been raised by the root action to the extent of an inch and a half at one end and a half inch at the opposite end; that the tree which plaintiffs' expert had described as 10 to 12 inches in diameter, had roots which were heavy enough to be a disturbing factor for an area extending at least ten feet from the tree; that in his experience, which he asserted covered a period of 30 years, he had seen "hundreds of sidewalks raised by tree roots." He asserted that he found no evidence of improper tamping of the sidewalk base, no evidence of settlement and that the "concrete was the proper mix and had been properly laid." Plaintiffs' expert challenged the opinion that the tree roots caused the difference in the level of the sidewalk slabs where Mrs. Citro fell and ascribed the difference in elevation to the settlement of a slab.
During the course of his charge the trial judge charged a request submitted by plaintiffs as follows:
"The traveling public has a right to presume that there is no dangerous impediment in any part of the sidewalk in absence of notice of such impediment. The principle applies to all interferences with safety of travel arising from temporary use of the sidewalk that are not normal and permanent incidents thereof and relieves persons passing along the sidewalk from any obligation to look for such interferences with travel. If the traveler sees them he must, of course, use reasonable care to avoid them, but he is not negligent merely because he does not look for them."
He then charged, among others, the following requests submitted by defendant which form the bases of plaintiffs' main attack on the judgment under review:
"The defendant has set up the defenses of assumption of risk and contributory negligence. I charge you that if you find that a portion of the sidewalk was raised, as described by the witness, open to view and not concealed, and that Mrs. Citro had looked ahead and made effective observations that made the condition of the sidewalk obvious to her, that you may find her guilty of assumption of risk or contributory negligence.
I charge you that Mrs. Citro had the obligation of using reasonable care for her own safety as she walked along the sidewalk. If you determine that a reasonably prudent person would have observed the sidewalk condition and that Mrs. Citro did not act as a reasonably prudent person in this respect, so that as a result she was injured, then you must find for the defendant."
Plaintiffs contend that these portions of the court's charge are at variance with the principles enunciated in Krug v. Wanner , 28 N.J. 174, 183 (1958), and Taverna v. City of Hoboken , 43 N.J. Super. 160, 164 (App. Div. 1956), certification denied 23 N.J. 474 (1957). They contend that "only if plaintiff knew or was aware of the existence of a defect in the sidewalk and ...