Price, Sullivan and Leonard. The opinion of the court was delivered by Sullivan, J.A.D.
Plaintiff was assaulted and robbed by unknown and unidentified persons while making deliveries of milk in one of the buildings of the Reverend William P. Hayes homes, a housing project operated by defendant Housing Authority. He sued for damages, charging that defendant had notice of similar occurrences on previous occasions but had failed to take proper measures to keep the premises safe for persons lawfully using the same. At the conclusion of the trial the jury rendered a verdict in favor of plaintiff for $6,000, and judgment was entered accordingly. Defendant appeals, charging numerous grounds therefor.
The project in question is a large development operated by defendant, a local housing authority, created pursuant to the provisions of N.J.S.A. 55:14A-1 et seq. It extends for several city blocks, with only one public street running through a portion thereof. It has ten residential buildings, each of which is 12 stories in height, and a community and boiler-house building. The project is 19.15 acres in size, has accommodations for 1,458 families, and in December 1957 its population was between 5,300 and 6,000 persons. Each building has two entrances which are kept open and unlocked at all times. No attendants or doormen are provided to control access to the buildings. There are numerous walks, play areas and parking areas throughout the project.
Plaintiff, a milkman, had been making deliveries to the project since 1954. His status as an invitee on the premises is unchallenged. On December 24, 1957, the day in question, at about one-thirty in the afternoon he was attending to his customers in the project and had gone to the twelfth floor of one of the buildings. There are two self-service elevators in each building. After making a delivery on the twelfth floor plaintiff entered the elevator and pressed the button for the fourth floor. There was no one else on the elevator at the time. The elevator descended a number of floors, and then stopped, and plaintiff got off thinking he was at the
fourth floor. Just then two men got on the elevator. Plaintiff immediately realized that he was on the sixth floor and got back in the elevator which now had the two other men on it. They proceeded to attack plaintiff with a pipe. Plaintiff was severely beaten and robbed. His two assailants ran off and have never been identified.
It was shown that, at the time of the attack on plaintiff, the project employed three private policemen who worked in shifts patrolling the project from four o'clock in the afternoon until eight o'clock in the morning. During the hours between eight o'clock in the morning and four o'clock in the afternoon there was no private policeman on duty in the project. A Newark police officer was assigned to patrol the streets and walks on the project grounds. He came on duty about 11 A.M., worked an eight-hour shift, and was relieved by another officer who was on duty until approximately 3 A.M. These municipal police officers were not allowed to go into the project buildings unless called.
Plaintiff also showed that prior to December 24, 1957 the defendant Authority had received numerous reports of crimes and acts of violence being committed in and about the Hayes project. The official minutes of meetings of defendant Authority held on June 12, 1957, July 10, 1957, August 14, 1957, September 11, 1957, and October 16, 1957 record that the matters of crime in the Newark housing projects, the alleged lack of adequate policing and the need for more "Special Police" were discussed at such meetings.
Defendant in its amended answer to the complaint set up by way of separate defenses that defendant was engaged in "governmental functions" and was guilty of "no active wrongdoing."
Prior to trial, the court, on plaintiff's motion, struck said separate defenses, holding that defendant Housing Authority enjoyed no governmental immunity from a suit for negligence, and that plaintiff was not required to prove active wrongdoing on defendant's part. In its opinion the court
stated that the function carried on by the Housing Authority was proprietary rather than governmental.
Defendant's first point on appeal is that these separate defenses were improperly stricken prior to trial and that it should have been afforded the opportunity to introduce evidence in support of these defenses. Ancillary thereto, defendant argues that the question whether it was conducting a proprietary operation or was engaged ...