Goldmann, Conford and Freund. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiff Celia Bechefsky sued for injuries suffered when she tripped and fell at the corner of Thomas and Brunswick Streets, Newark, on the night of October 23, 1956. Her husband sued per quod. The suit was grounded in negligence and the maintenance of a nuisance. The original defendants were the City of Newark and the owners of the corner apartment house, the Ganeks.
The trial court, on motion, dismissed the action against the Ganeks at the close of the testimony relating to liability, but denied a similar motion made on behalf of the city. The jury returned a verdict of $3,500 for Celia Bechefsky and $1,500 for her husband. After judgment was entered the city moved for a new trial alleging, among other things, that the verdict was against the weight of the evidence and the result of mistake, partiality, prejudice and passion; it was excessive; the trial court erred in not admitting a contract between the city and the independent contractor who was doing the street and curb work at the corner in question, and was in error in charging that the city was an agent of the independent contractor (what was actually meant was that the contractor was an agent of the city). The motion was denied and this appeal followed.
Celia Bechefsky, 68 years of age, testified that she was walking west on the right (north) side of Thomas Street on her way home from a bingo game. When she came to the corner of Brunswick Street she started to cross, tripped on the sidewalk and fell into the street, sustaining the injuries complained of.
Plaintiffs' witness, a Mrs. Manly, testified that she was walking a few yards behind plaintiff when she saw her fall. The night was very dark, and she said there were no lights or barriers at the corner.
On the date of the accident about half a mile of Brunswick Street was in the process of being repaved under a state-aid project contract awarded by the city to Nesto Brothers. This involved, among other things, the resetting or replacing of existing curbs. The testimony and the pictures in evidence establish that new iron curbs of greater radius had been installed at each of the corners of the Brunswick and Thomas intersection. They were set farther back than the old curbs; this involved breaking up the sidewalk behind the curbs and resulted in a rough space being left between the old and new locations of the curbing. The pictures show that on the night in question the areas in front of and behind the new iron curbs were quite irregular in surface and contained accumulations of dirt, broken cement and other foreign matter. Eventually these street areas would have been repaved and the broken sidewalks resurfaced by Nesto.
The city engineer testified that he was supervising engineer on the repaving job. Two city inspectors under him saw to it that the materials and construction complied with the city's specifications, but they did not actually direct any of the work done by Nesto.
The city argues three points on this appeal: (1) it was immune from liability because the work was done by an independent contractor, and the trial court's failure so to instruct the jury constitutes reversible error; (2) the verdict was against the weight of evidence, and the trial court's failure to grant a new trial constituted an erroneous exercise of discretion; and (3) the trial court committed error in failing to instruct the jury that the city would be liable only if it actively participated in creating the condition complained of. We will consider the arguments in that order.
In his charge the trial judge instructed the jury that the city was performing a proper governmental function
when it undertook to reset the curbs and fix the sidewalks after the resetting, and if in doing so the city actively did something which was negligent or created a nuisance, as a result of which Mrs. Bechefsky fell and sustained injuries, then the city would be liable to respond in damages. He then went on to say that the mere fact that the city did not do the work with its own employees, but hired Nesto Brothers, was entirely immaterial because Nesto was acting as its agent. The city claims that the latter instruction was reversible error.
The city did not specifically object to the portion of the charge under attack, and therefore should be foreclosed from asserting error. R.R. 4:52-1 provides that "No party may urge as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of the objection." The attorney for the city made only a "general exception" at the close of the charge. A general objection no longer suffices. King v. Jones , 47 N.J. Super. 279, 284-285 (App. Div. 1957). Assuming the ...