Gaulkin, Kilkenny and Herbert. The opinion of the court was delivered by Herbert, J.s.c. (temporarily assigned).
This case has been tried twice. The first trial resulted in a dismissal at the end of the evidence for the plaintiff. On appeal there was a reversal, Gellenthin v. J. & D., Inc. , 62 N.J. Super. 224 (App. Div. 1960), and a new trial followed. The outcome of the second trial was a jury verdict in favor of the defendant and the plaintiff now appeals again.
The plaintiff's claim arose out of a fall on an icy sidewalk in Cliffside Park, Bergen County. Early in the evening of December 5, 1957 he was walking east down the steep slope of Oakdene Avenue. He had just passed the defendant's property and had reached a part of the public sidewalk in front of the adjacent premises of another owner when the accident happened. The theory of liability was that the ice on which the plaintiff slipped was caused by the freezing of water from melting snow which had run down during the day from the defendant's property, particularly from leaders or downspouts constructed to discharge onto the defendant's
paved driveway which was graded downward toward the sidewalk the plaintiff was using.
A brief discussion of the legal principles applied at the first trial and on the first appeal will be a good introduction to the questions now before us. When the plaintiff's case was dismissed on motion, among the authorities relied upon by the trial judge was Pierri v. Faure , 14 N.J. Super. 172 (App. Div. 1951) in which the following statement is found at page 175:
"The general rule is that an abutting owner who collects the natural drainage of water from the roof of his building and discharges it upon the sidewalk through a pipe or other orifice is not liable to a pedestrian who, after this water had frozen upon the sidewalk, slips upon the ice so formed. Zwickl v. Broadway Theatre Co. , 103 N.J.L. 604 (E. & A. 1927); Jessup v. Bamford Bros. Co. , 66 N.J.L. 641 (E. & A. 1901). The exceptions to this general rule are set forth in Saco v. Hall , 1 N.J. 377 (1949)."
Then, in deciding the earlier appeal for the plaintiff, this Division called attention to the change in our law on surface waters made by Armstrong v. Francis Corp. , 20 N.J. 320 (1956), saying at pages 231 and 232 of 62 N.J. Super.:
"In Armstrong, supra , the court determined that, in resolving disputes between owners of private property, allowance should be made for 'differences in factual situations' in determining the liability of the landowner who alters the flow of surface waters with resulting material harm to other landowners (20 N.J. , at page 326). It rejected the 'common enemy' rule theretofore controlling, declared its 'adherence' to the '"reasonable use" rule laying down the test that each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, but incurs liability when his harmful interference with the flow of surface waters is unreasonable.' (20 N.J. , at page 327). In this connection the court declared (20 N.J. , at page 330):
'The rule of reasonableness has the particular virtue of flexibility. The issue of reasonableness or unreasonableness becomes a question of fact to be determined in each case upon a consideration of all the relevant circumstances, including such factors as the amount of harm caused, the foreseeability of the harm which results, the purpose or motive with which the possessor acted, and all other relevant matter.'
The Armstrong case doctrine has been recognized in subsequent decisions. Hopler v. Morris Hills Regional District , 45 N.J. Super. 409 (App. Div. 1957); Yonadi v. Homestead Country Homes, Inc. , 42 N.J. Super. 521 (App. Div. 1956).
While, as we have above noted, Armstrong, supra , involved a dispute between owners of private property and not, as in the instant case, an alleged invasion of a public easement, when we recognize that the 'common enemy' rule foundation of Jessup is no longer the law, the significance of Armstrong in the instant case is emphasized. We therefore hold that the doctrine enunciated in Armstrong, supra , decided by the Supreme Court five years after the decision in Pierri v. Faure, supra , 14 N.J. Super. 172, requires the application of the ...