Goldmann, Foley and Lewis. The opinion of the court was delivered by Foley, J.A.D. Goldmann, S.j.a.d., concurring in result.
This is a sidewalk accident case grounded in negligence, and nuisance arising out of negligence. Defendants have owned and occupied a residence property located at the corner of Washington Avenue and Carmita Avenue, Rutherford, New Jersey continuously since May 1953. While walking along the flagstone walk on the Carmita Avenue side of the property at about noon on May 9, 1959, plaintiff tripped over a raised flagstone and fell, suffering personal injuries. At the close of plaintiff's case the trial court granted defendants' motion for involuntary dismissal and plaintiff appeals.
When considering the propriety of granting a motion for dismissal, the court must regard the evidence and inferences arising therefrom in the light most favorable to the plaintiff. Hayden v. Curley , 34 N.J. 420, 422 (1961). Applying this standard to the present case we find that the evidence discloses the following: The sidewalk was installed at least 50 years ago. It is the conventional type of flagstone walk consisting of a series of stone slabs laid side by side. Along the Carmita Avenue side there are two points at which slabs are raised above the level of those adjoining them. One such slab is opposite a tree, the other, and that which plaintiff testified caused her to trip, rests on a terra cotta drain pipe. The drain is connected to a leader which runs from the roof of defendants' dwelling to the ground. The dwelling is set five steps above the sidewalk level, a height which may be approximated at five feet. The grading of the property is protected by a concrete retaining wall just off the sidewalk, which appears to be about 30 inches high. The terra cotta drain pipe runs underground
from the dwelling to the street, passing under the retaining wall and the flagstone in question. For its entire width this flagstone is one and three-quarter inches above the level of the one adjoining it and plainly constitutes a trip-hazard. This condition existed when defendants acquired the property in 1953 and has remained unchanged ever since.
The theory of liability as pleaded by plaintiff in her complaint was that:
"* * * the defendants constructed said sidewalk in a negligent and careless manner and they carelessly and negligently maintained the same, failed to have sidewalk constructed of proper materials, failed to have them even and negligently permitted the same to be uneven, raised and cracked and negligently and carelessly repaired causing a portion of said sidewalk to be raised and to constitute a dangerous obstruction to pedestrians lawfully using the same, and further failed to give any warning or notice of said dangerous condition, failed to make reasonable inspection of said sidewalk, and otherwise carelessly constructed and maintained said sidewalk in a condition which was dangerous to pedestrians."
"* * * the defendants maintained and permitted a public nuisance upon the sidewalk on premises owned by them and commonly known as 221 Washington Avenue, Rutherford, New Jersey, consisting of an improperly constructed and maintained sidewalk which was raised, uneven, cracked and negligently repaired, constituting a dangerous obstruction and a public nuisance to the general public, including the plaintiff herein lawfully using the same, and failed to give reasonable notice of said dangerous condition and public nuisance, and failed to remove the same, as a result of which the plaintiff stumbled and fell and was seriously and was gravely injured * * *."
The specific factual contentions arising from the foregoing generalized charges of negligence and nuisance, as appear in paragraph 2 of the pretrial order, were:
"Defts were owners of premises at 221 Washington Ave., Rutherford and pltf charges on May 9, 1959 the sidewalk in front of said premises was improperly constructed and/or improperly maintained.
Pltf contends that the sidewalk was uneven, raised and cracked and if any repairs had been made they were improperly made. They contend there were 2 concrete slabs and one was 2 inches higher than the other and the walk from the street curb was lower, badly cracked and unevenly constructed and there was no notice of the dangerous condition. As a result of that that pltf fell on said sidewalk and was injured."
It is noted that neither in the complaint nor in the pretrial order, was mention made of the construction or maintenance of the drain pipe, as a factor causative of the accident.
At the trial plaintiff called as an expert witness one Jasper Morici, a general building contractor of some 35 years experience. Morici testified in detail concerning the course of the drain pipe and went on to say:
"In my examination of this condition here, I found that the tile pipe is underneath the bluestone flagging and at the bluestone flagging there is two elevations due to the cause that the tile pipe was laying underneath the bluestone flagging, one that was disturbed sometime or other when that tile pipe was installed there. There is about an inch and a half difference in elevation between one bluestone flagging and the other ...